James K. Robertson, Carmody Torrance Sandak & Hennessey ()
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.
I warn the parties that my number is not intended to do justice, to reflect truth, to effectuate reasoned judgment, or to provide balm for the injured or damaged. Some parties are startled to hear this, so I say it again with more emphasis. I tell them that my only goal is to achieve a settlement, which is usually accomplished by making them all equally unhappy or outraged. Some parties are startled and offended when they hear that. I say it because it is true. Throughout the negotiations, I focus my inner senses on what that number might be. I read the people—the clients and the attorneys—and the relationships between them. I read their submissions. I often read their affidavits and cited cases, but I do that work not because I am trying to discover and proclaim justice; I do that work so that I can appropriately challenge them during the ex parte sessions, and so that I can get glimpses into what might be the number.
It’s a fairly ruthless process. And that is another reason why “The Number” shouldn’t be offered unless all the circumstances are just right.