I rarely give a “Mediator’s Number,” and I never give one unless the circumstances are just right. What are those circumstances? First, the parties have to request “The Number;” second, the parties have to have reached a deadlock in the mediation; third, there has to be a reasonable chance that the number will produce a settlement; and fourth, and most importantly, all the parties have to clearly understand the rules. I usually write out the rules in order to minimize the risk of misunderstanding. My rules are pretty simple. I give a number. It is “The Number.” It is not the starting point for further negotiations. The parties agree on a date and time to respond. The parties agree up front on any additional terms, such as full or customary releases, to all or certain parties, standard confidentiality, non-disparagement, payment terms, etc. I then communicate the number to them in writing. They respond to me in writing by the designated date with either a “yes” or a “no.” If all the parties respond “yes,” I congratulate them on their settlement. If one party responds “no,” I report that there is no settlement. I do not disclose who responded “yes” or “no.” That way there is no prejudice to the party who responded with a “yes.”
The reason why the circumstances have to be just right is, otherwise, inflicting the number on the parties might damage their chances for settlement. If they haven’t truly reached a deadlock, the parties may simply take the number as being either a floor or a ceiling for their future demands. A client may become unwilling to pay more or to accept less than the number because it has now been “pronounced” by the neutral mediator. The rules have to be clear because some clever or misguided disputants might otherwise write little essays on their response; instead of a simple “yes” or “no,” they may write a host of unanticipated conditions: an apology demand, interest at 20 percent, reinstatement, additional business projects, etc. And the mediator has to follow the rules too: if no settlement is reached, there can be no sly intimations that one side accepted the number.
