Should Parties tell Mediators Their Bottom Line?       
by Peter Contuzzi

As lawyers increasingly make mediation the forum of choice to attempt negotiating settlements for their cases, they also increasingly confront the thorny issue of what to say when a mediator asks them what their bottom line is.  When a speaker at the 1999 American Bar Association Section of Dispute Resolution Annual Meeting in Boston was asked if he advised candor, his response was immediate and forceful: "Don't do it! I tried it once and got burned by the mediator. All he used it for was to try to leverage me further. Never again!"  He was vigorously challenged by a mediator who lamented that if the parties hide their true positions not only from each other but also from the mediator, they dramatically lessen the chances of settlement.

The intensity of the sparks generated by this topic indicated a glaring need for better understanding between the two types of lawyers caught up in this dilemma - the mediator who finds the question useful, and the negotiator who believes an honest response to be dangerously risky. Before going any further, we should note that a debate has developed over whether it is even appropriate for a mediator to ask the bottom line question. In the typical civil litigation negotiation where money is the primary (if not only) issue, some negotiators may resent a question, even within the protected confines of a separate meeting, which so bluntly zeroes in on their ultimate piece of confidential information.

Others will share the above negotiator's concern about being manipulated by the mediator. And mediators, mindful that they cannot really know if the parties will be equally candid, may worry about having their process manipulated to the disadvantage of the party that is more honest in responding to the question. 

These are legitimate concerns, but human nature and common sense can also provide some guidance here. In a money negotiation, each party normally wants an opportunity to explore how much (little) it can get (pay) in exchange for a settlement. The bottom line number of each, therefore, is usually considered nobody else's business. But the risks of a trial normally give a settlement its "bottom line" value to negotiators.

Assume that a mediation process is devised so that it allows negotiators to do that exploring and then, before concluding with a stalemate, provides them with an opportunity to find out if their bottom line (hopefully, arrived at after reflection on what was learned during the mediation) would be acceptable to the other side.  If that process has appropriate protections in place so that this can be done simply, safely and without risk of manipulation by the mediator, why not take advantage of the opportunity? And if a mediator can lessen the risk of negotiator manipulation by providing incentives for candor, why not seek confidential disclosure of information that is so obviously useful in a money negotiation? 

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