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Bottom Lines: Don’t Reveal, But Do Discuss

{3:54 minutes to read} In my last blog I discussed why you should not reveal your bottom line during a mediation. Bottom Lines: Don’t Reveal, But Do Discuss by Gary ShafferYou can read that here.

My teaser line at the end was that it’s important for attorneys and clients to discuss bottom lines. And that discussion may have to occur several times. Parties generally enter a mediation with very different ideas as to what a case is worth or what it should settle for. The plaintiff thinks the defendant should take out the checkbook and be prepared to write a check with lots of zeros. The defendant thinks that any check should contain only zeros.

For all sorts of reasons, there are cases that can’t settle at mediation. However, the majority can and do eventually result in a settlement. Most of those could be resolved through mediation.

Discuss Your Bottom Line Before the Mediation

  1. The importance of discussing your bottom line before the mediation is that it helps you to look at the facts in a more impartial manner. What am I really willing to take/give here and why?  Of course a party can only look at the facts it knows. What facts would make a case worth $X or $Y?
  2. Do you need information from the other side before you can make that calculation? If so, perhaps you can get it at, or even before, the mediation. Or maybe you need to provide the other side with information so they know why a case is worth more or worth less. What makes it compelling for the other side to settle?
  3. Discussing a bottom line also helps ensure the attorney and the client are on the same page. Parties can be overly optimistic. Attorneys often support that optimism, and it’s important to reassess if the initial evaluations still make sense. Do the time, risk, and cost of continued litigation require adjusting the original bottom line?
  4. Just as critical – if you were on the other side, what would your bottom line be, and why? How would the other side evaluate the facts and the law? Has anything changed?

There is also the issue of bottom line as a negotiating tactic. Don’t overuse it. What I often find is that when a plaintiff says their bottom is that they won’t take less than $X, they’re ultimately willing to take less than $X. When a defendant says their bottom line is they won’t pay a nickel more than $Y, they’re willing to pay more than $Y. But there does come a time when parties may really mean it. Or almost really mean it. Figure out when that is and be willing to walk away or decide that a compromise may be the best thing.

So, the bottom line?

  1. Know what your bottom line is, make sure the client and attorney are on the same page, and why.
  2. Revisit as negotiations or litigation continues.
  3. Don’t overuse it.
  4. And look at it from the other side.

Gary ShafferGary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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