I try to limit the so-called "deception" aspects of "filtered disclosure" by telling everyone up front that if they want me to consider any communications in caucus as confidential, they must specifically ask me to do so; otherwise, I will use my judgment as to how much, if any, to disclose to the other side(s).

I have only recently added a feed from your site, but wish I had done so sooner. Your posts are nearly always timely and provocative. Keep up the good work.

I don't characterize the fact that the mediator has some confidential information as deceptive. After all, the mediator tells both sides they can disclose information in confidence, and that's an important tool for the mediator.

I have never thought that a mediator told me and my client a direct lie - but it could have happened. I guess my point is that characterizing the meditation process as inherently deceptive is, I think a disservice. Sometimes the truth needs to be stretched a little to get parties to agree, but how is that different than any negotiation?

Telling our clients in separate caucus that we will use our discretion to disclose anything we believe to be useful unless they expressly direct us otherwise is a great way to handle the ethical problem of signaling, telegraphing, predicting or tipping one party's hand to the other.

However, given the demonstrated fact that the most significant factor in predicting negotiation outcome is what Party A BELIEVES Party B's bottom line to be, we mediators must be mindful of the impact our predictions and noisy disclosures will have on the parties' ability to negotiate the best possible deal for their client.

As Peter Robinson, co-director of the Straus Institute often asks, "how big a finger print are you willing to leave on the outcome?"

Here are a few common questions along the slippery slope I'm routinely asked by parties in separate caucus:

1. What's the temperature in their room?
2. Who's creating the impasse over there - the client or the attorney?
3. If I offer $X, what do you think their counter will be?
4. Do you think they'll go above/below 6, 7 or 8 figures?
5. If I offer $1.2 million can you guarantee me that they'll accept it?
6. What is their bottom line?

I was consulting with a client recently about an on-going mediation impasse (yes, attorneys do hire mediators as advisors if the numbers are high enough) and was advised that the mediator had this to say of my client's opponent's position during the final failed session: "He's at $25 million now, but I believe he'd be willing to come below that, maybe into the low 20's and there's some chance you could settle it for $19.5."

I had several comments to this prediction by the mediator. First, I don't believe any mediator would use as precise a number of $19.5 unless that number had been discussed -- and discussed favorably -- in the other room. Second, you have no guarantee that the mediator floated that number with your opponent's permission.

Given the width of the delta between the $25 million on the table and the predicted potential $19.5 settlement, I'd personally be surprised if this disclosure was one approved by the parties in the other room. That being the case, I'd assume that the mediator was similarly telegraphing my client's predicted bottom line to the other side. If that was OK with my client, all well and good. If not, it might be time to part company with the mediator (or even take a mediation vacation from him) while my client re-anchors the negotiation at a number he WANTS to be at rather than one the mediator has signaled he is actually at.

Not using actual numbers to protect confidentiality, I will tell you that my client's client was willing to settle as high as $17.5 (but preferred to settle for $16) and had put only $10 million on the table.

The ACTUAL delta between party offers and counters was therefore an unbridgeable $15 million. If my client were to credit the mediator's "prediction" that the other side would be willing to go as low as $19.5, the ACTUAL delta between the parties was only $2 million -- a number the parties could no doubt bridge through further negotiation.

Based on the comments of several mediators at the training yesterday, many would have had little hesitance to telegraph or predict these two bottom lines for the purpose of settling the case even if they didn't have the clients' permission to do so.

My questions are these (among many others): are the PARTIES willing to have the mediator do so? If not AND if the mediator has promised confidentiality in separate caucus, is the mediator violating the parties' trust and confidence? Is the mediator violating professional ethics? Is the mediator leaving too big a finger print on the outcome, i.e., has he placed his thumb on the scale and, if so, has he done so impartially, "omni-partially" or in favor of the party whose case he most favors or, worse, the party he responds to most favorably.

If the true delta genuinely is between $17.5 and $19.5 and the parties are having trouble getting there, I believe there are far better ways to assist them in reaching a mutually agreeable settlement than "gaming" them or helping them to "game" one another, always remembering that the parties are "gaming" the mediator as well.

Is this the best our profession can do? I think not. More thoughts on this in my next post.