Should Parties tell Mediators Their Bottom Line?       

Timing is obviously of paramount importance here, and effective mediators normally will not ask this type of question (as well as discourage "What do you think it's worth?" type questions from the negotiators) until the last phase of the negotiation. Keeping in mind the issues raised above, we are now ready to reframe the question posed in the title of this article: Are there mediation process techniques, to be employed at the end of a money negotiation that will otherwise conclude in a stalemate, which can allow a negotiating party to find out simply and without risk if its bottom line would be acceptable to the other side, and which also encourage candid responses?

In a separate meeting, I can of course ask a party to disclose its bottom line to me and then ask the other party whether that number would be acceptable if it could be obtained. This garden variety "What if" technique offers at least some protection since the hypothetical language used does not constitute a formal settlement proposal.  That can be a pretty thin veil, though, and some negotiators will speculate that the hypothetical number has already been approved by the other party. Alternatively, I can ask each party to tell me its bottom line and then advise them, for example, whether the numbers are the same or (without disclosing the actual numbers) whether they overlap, are near each other or far apart. While they have the virtue of simplicity, these common techniques lack both sufficient incentives for candor and protections against manipulation. They may also leave unclear what will happen next if they do not produce an agreement. For example, the 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.

Given these risks and uncertainties, how candid can they afford to be?

Safety deposit box

To address these shortcomings, I have experimented for several years with a technique in money negotiations I call the Safety Deposit Box. Mine is a deadline-oriented process, and if the parties are not close to agreement as we approach the end of the allotted time, I sometimes convene a joint meeting to tell them that there is a final technique that is often effective at this point. I ask them to think of me as a Safety Deposit Box and explain that numbers go into the box but not out - they remain locked in the box. My explanation continues with words similar to the following:

"1 will separate you one last time in a few minutes and ask you to put your final bottom line number into the Safety Deposit Box. Please give careful thought to your number, because it will be used by me in several ways. These numbers will not be disclosed unless, as happens occasionally, they are the same. If they are the same, I will bring you together to sign a settlement agreement. A few times in the past, these numbers have overlapped, i.e., the plaintiff's final number was lower than the defendant's. That is the one and only situation in which the midpoint between your final numbers will arbitrarily become the settlement amount.² If there is a gap of any significance between your final numbers, I will inform each party that a gap exists, without disclosing either number or the size of the gap. You may then choose among three options: 1) to keep your number confidential; 2) to disclose your number to the other side; or 3) to condition your disclosure on the other party's agreeing to disclose its number to you. 

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