Should Parties tell Mediators Their Bottom Line?       

Surely, however, the negotiator quoted above has an understandable concern. What you tell a mediator should not come back to bite you. The negotiator apparently had different expectations than the mediator on how the bottom line information he disclosed would be used. He quickly became mistrustful of the mediator.

And we quickly arrive at the heart of a serious problem. Uncertainty about how particular information will be used, as well as uncertainty about the next procedural step, can lead to at least a failure to make full use of a mediation's potential. Worse, this "process uncertainty" can also lead to mistrust of the entire mediation process, encouraging dishonesty and deception even in confidential, private discussions with the mediator. That is an especially serious problem in a mediation, because it can rob the process of one of its major advantages over a conventional face-to-face negotiation. In every negotiation, there is information that is useful to putting an acceptable agreement together but too risky to discuss directly with other parties because it might be used by them to your disadvantage. Through mediation's powerful addition of the confidential separate meeting to the negotiating framework, negotiators can dramatically increase their control over the processing of information that is useful for agreement development but risky when disclosed to the other side.

Parties may be wary of winding up with an unwanted value opinion or a settlement proposal from the mediator that they suspect may be nothing more than a splitting of the difference between their confidential bottom line numbers. Since we work in the real world, we must recognize that in a money negotiation, parties often find it in their financial interest to deceive other parties, including at times the mediator. The challenge for those of us who use or practice mediation is to develop simple procedural steps and techniques to address the uncertainty problem and its related tendencies toward deception. If we want negotiators to be candid with the mediator during the separate meetings, we mediators must do more than explain confidential information protections or appeal to the more rigorous ethical obligations some argue should apply in mediations.¹ We must show them how being honest with the mediator serves their self-interest, and offer techniques that not only lessen the risks of candor, but perhaps even reward it.

First, a general comment about lessening uncertainty. By now, mediators are expected to provide a procedural overview of their process and clearly explain their role, the use of the joint meetings and separate meetings and the confidentiality protections. That obviously helps to lessen uncertainty. But an effective process must also be flexible, so there are limits on how specific a mediator can be at the outset without boxing himself in procedurally or burying the negotiators with information that could be more effectively presented later on. A simple solution is to present the most detailed explanation at the most appropriate time. Money negotiations being what they are, questions about what dollar amounts would be acceptable to a party are particularly sensitive and therefore should be preceded by a very specific explanation of how responses will be used.

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