By Steven G. Mehta

What Would You Do If….

A party tells you at the beginning of the mediation, my bottom line is X.  Either you get that number or better, but do not beat me up to take me off my number.

Mike Young: I don’t beat people up…it leaves bruises and is bad for business.  I’m also more than happy to have parties stick to their bottom line for as long as they like.  But I will take the time to remind them exactly whose dispute this is…by holding up a mirror for them.  If a party really wants to hold the line at X, that’s fine with me, but they’d better have a well-planned negotiation strategy that gets them to X at the end of the day or be prepared to lose a desirable resolution based on their own unnecessary intransigence.  I would also happily work with the party to develop a negotiation strategy that might achieve the desired bottom line, while also suggesting that the party keep one thing in mind — it may very well be that the opposing party also has a bottom line…and the two bottom lines may not overlap.  I also reserve the right at that point to bring everyone to the precipice of their Bottom Lines to wave to one another across the gap and contemplate what we should do next.  At that point people will have to decide, are we close enough to get this done?  Are there non-monetary items we can throw into the mix to bridge the gap?  Have we really explored all interests, views, positions, demands?  Can’t we do something to avoid another dreaded Mediator’s Proposal?  And then it’s up to the parties, with my help, to decide whether to push a little harder.  They usually do and the deal gets done.

Tracy Allen: Again, I don’t allow this situation to occur if I can help it. I tell parties I never want to know their bottom line- for a variety of reasons. First, they lie and since I consider all people I am privileged to mediate with, my friends and colleagues, I hate it when my friends and colleagues lie to me.  Second, if a party asks me “Is that it? Is that their

bottom line?” I don’t want to lie to the person asking so I can honestly say “I don’t know.” I do ask parties to send me signals however, that they are reaching their limit, getting close to their end figure. That way I know how to close a small or large gap, and have intelligence to help direct their bidding war.  I also tell them that by drawing a line in the sand and taking a “final position” (which is never “final” like the game show- is that your final answer?”), they hae lost control of the negotiation and we all know people like to control the negotiation. They make it too easy for the opponent to say “no” and walk away. Why not make the other wide work too? Then I usually tel the story of the swimmer in the English Channel: You’ve been  swimming for 23 hours and have lost track of where you are, you have 100 yards to go but the fog is so thick that you can’t see

land and have no clue where you are. You can’t imagine one more energy drink, one more power bar, the fogs horns are sounding and you can’t hear the person on shore with infrared glasses who knows you are so close, yelling to keep swimming. If you got into the boat at that moment and didnt’ know it was only 100 yards, you’d kill yourself. So don’t do that. Also, don’t back yourself into a corner such that I have to figure out a way to extract you from that spot while saving your face.

Gig Kyriacou:

This is the mediator’s fault.  I do not give the parties an opportunity to tell me their bottom line at the beginning.  Most attorneys know that I do not want to hear bottom lines at the outset.  I tell parties and counsel that those who set forth their bottom line at the outset usually do worse in the end.  I tell them that I expect everyone, including myself, to not get fixated on any particular position or dollar amount.  The whole purpose of mediation is to fully evaluate your risks and settlement options to make a smart decision about settlement taking into account all of the facts, legal issues and practical considerations.  You cannot do this by prejudging your situation.