By Steven G. Mehta

What Would You Do If….

A party states that it has a bottom line number and has previously asked the mediator to identify it as a bottom line number.  The party has changed its mind but doesn’t want to lose face in front of the other side.

Gig Kyriacou:

I always caution parties to avoid making absolute bottom line offers because they are limiting their own options.  I let them know that I would rather see them make a less generous move to avoid impasse and to leave open the opportunity for further negotiations including the possibility of mediator’s proposals or other concessions that may get them where they want to go without having to lose face, or worse yet, credibility in future negotiations.  I simply do not allow bottom line proposals without first walking through what that means.  Again, when the parties understand the consequences of such a move and the possible alternatives, they almost always choose the right course.  It is just about thoroughly communicating the consequences and the better opportunities available.

Mike Young: Easy, blame the mediator.  Everyone else does (including my wife:  “Why did you let Eva Longoria and Tony Parker break up?”  “Uhhh, sorry?”)  In the mediation context, one party could simply say:  “I don’t want to move to this number; it’s beyond what has originally been authorized and what I think is fair; but the mediator has impressed on me the need to get this done, and if this new number will get it done, I’ll reluctantly go there.”  Or, use a Life Line:  “I’ll have to make a call to see if I can get more authority for this….”  Or go for the combo-excuse in the context of a Mediator’s Proposal:  “I can’t go beyond my bottom line unless I know the new number will close the deal, so if you Mr. Mediator, were to make a Mediator’s Proposal at X, I would call my client to see if I could get authority for that number.”  Or if all that trickery fails, try something really crazy…like the truth:  “I’ve changed my original bottom line based on the information I have learned from this mediation session.  I’m now willing to go to X.  (p.s., don’t expect me to move again.)  And I had nothing to do with Eva and Tony’s break up.”

Tracy Allen: Which is exactly why when the party tells the mediator to tell the opponent it is the bottom line, the mediator shouldn’t take the bait.