Is That Your Final Final Offer?

“This is our bottom line.”

Sometimes it is. Sometimes it is the first of several bottom lines we will encounter before lunch. The same is true of “the most my client will ever pay,” a number that occasionally enjoys a surprisingly short life expectancy.

Mediators expect negotiating positions to change. That is rather the point. But there is a difference between moving your position and repeatedly misrepresenting it to the person trying to help you reach an agreement. That difference can affect both the outcome and how long it takes to get there.

You do not have to tell your mediator everything. You do not have to announce your settlement authority when you walk in the door or reveal the number your client would reluctantly accept at the end of a long day. You may not even know that number yet.

A good mediator will not ask for your bottom line or your top dollar. The work involves exploring interests, evaluating risks, and developing possibilities for agreement. Asking everyone to disclose an ultimate number skips the very process that may change what the parties are willing to do.

But if you volunteer an absolute limit, your mediator needs to know whether that description means anything. It is not helpful to state a limit that isn’t. And if your mediator does ask, simply say, “I’d rather not say at this point.”

A mediator uses what you say to make judgments about the next step. A good mediator listens intently and constantly evaluates. Should we spend more time discussing risk? Explore different terms? Ask someone to seek additional authority? Encourage the other side to make a significant move? Give everyone a little space? Your description of where you stand helps determine where the mediator spends time and how the mediator approaches the other room.

If you describe a negotiating position as an immovable limit, you may send the mediator to work on the wrong problem. Time that could have been spent developing a workable exchange gets spent trying to bridge a gap that is not actually there. Or the mediator may conclude that an agreement is out of reach when a productive conversation is still possible.

The problem becomes more serious when the mediator relies on your representation in talking with the other side.

Suppose you tell the mediator that your client will not accept less than $200,000. You are emphatic. You have discussed it thoroughly. There is no possibility of moving. With your permission, the mediator communicates that position and spends considerable time helping the other side evaluate whether it can get there.

Then you accept $175,000.

You may view that as a successful negotiation. The other side may reach a different conclusion: the mediator’s assessment of your limit was unreliable. The next time the mediator tells them that a position deserves serious attention, they have a reason to wait. You have taught them that another “final” number may be coming.

The reverse creates problems, too. You tell the mediator that a particular number would resolve the case. The mediator is authorized to explore it, and works to get the other side there. When it arrives, you decide you need more. Perhaps something genuinely changed. But if nothing changed except your belief that there must be more available, you have made the next conversation substantially harder. The other side may feel that its movement has been used against it. A settlement within reach can start moving away.

That costs you credibility. It also costs the mediator credibility, and in the other room, the mediator’s credibility may matter more.

The other side already expects you to advocate for your client. It discounts your statements accordingly. The mediator is different. A mediator’s ability to get someone to reconsider a position depends substantially on being believed. When you give the mediator unreliable information, you weaken a resource that may be essential to settling your case.

None of this means that you must remain married to a number announced at 9:00 a.m. New information matters. A discussion of risk may change a client’s thinking. Additional authority may become available. Terms other than money may change the value of the deal. Explain what changed. Consistency does not require rigidity; it requires a coherent account of where you are and how you got there.

Choose your words accordingly. “This is our current offer” leaves room to negotiate. “This is the authority I have today” describes an actual constraint. “We would need a substantial move before considering anything further” identifies a condition. Those statements give the mediator something useful to work with without requiring you to disclose your ultimate position.

There may come a point, however, when the day—or the negotiation—is ending without an agreement. A good mediator may then encourage you to make your best pitch before leaving. Put forward the proposal you are actually willing to make to resolve the case. Give the other side a meaningful opportunity to accept it. The purpose is to explore every remaining opportunity for settlement so that you leave knowing you made your best effort and understanding that trial is what you must now prepare for. You should not have to wonder later whether one more proposal would have made the difference.

That conversation will be more productive if “best” and “final” have not already been worn out.

Trust your mediator enough to distinguish what you want, what you are currently willing to do, and what you truly cannot do. Be clear about what may be shared and what should remain confidential. If you are not ready to disclose a limit, say so. Reserve is manageable. Misrepresentation makes the work harder.

You do not have to show your mediator every card. But if you want him to be effective in the other room, do not give information that makes his word worth less when he gets there.