These discussions may lead to the mediator asking the counsel and party to give the mediator their bottom line to be kept confidential from the other side who will have a similar discussion with the mediator as to their bottom line. Parties rarely give the mediator the real bottom line which can only be tested when there is a realistic prospect of settlement, but this technique is useful in narrowing the gap between the parties without engaging in what is a prolonged and often contentious negotiation in which plaintiff’s counsel will undoubtedly say that the defendant does not respect me and our case and defense counsel says that the plaintiff is not being realistic about the liability and/or damages issues.
Using this negotiation with the mediator methodology may result in the mediator negotiating with the parties all the way to the point where they separately agree on a settlement number and the mediator can announce that they have settled. Other times, the method will narrow the gap enough to start a negotiation in the zone of agreement in an effort to reach a settlement. Either way, this approach to negotiation can serve as an impasse buster without alienating the parties to the suit. It is not an appropriate method for all mediations, but one to be considered under circumstances where the parties are too far apart to engage in a meaningful negotiation and a traditional negotiation between the parties is likely to create an insurmountable impasse early on in the mediation.