Nothing halts a productive mediation more than one of the parties launching the “F-bomb.” Salty language can be used during negotiations from time to time, but in this case we are discussing the use of the word “final.” Mediators cringe when either party asks them to deliver their “final offer.” Without corrective effort, this phrase can become the death knell of the positive negotiations.
There are several reasons why this term should be avoided during positional negotiating:
There can be a significant emotional impact on the party using the term and on the opposing party. One party has now issued an ultimatum—my way or the highway—and have locked themselves into an inflexible position. The opposing party has been rejected and informed that that nothing less than full surrender will resolve the case. The process has been turned into more of a game of chicken than a negotiation. One side is invested in a static position, while their counterpart cannot approach that position without looking like they are conceding. The emotional momentum has swung away from resolving the case.
Tactically, it’s often a mistake for the party issuing the ultimatum. They have lost all ability to maneuver, leaving themselves no flexibility to bring the dispute to an end using either creativity or even a nominal concession without looking like their announcement of a “final” position was a bluff. In a case of any size, it’s unwise to move forward with expensive litigation over what might be a very small gap that can no longer be bridged because of one party’s use of the “F-word.”
Also, it can create reputational risks and consequences for the party who uses the term and then moves off that position (often wisely) to resolve the matter. The party who makes the “final offer” has demonstrated their line in the sand can be crossed, and it can hurt their credibility on an ongoing basis. This can be particularly problematic for advocates who take this position based on instructions from their party who shares that this is the final offer, and later finds out, much to their chagrin, that they can go further to resolve the case. We suggest a healthy discussion between lawyer and client before the mediation takes place that includes the client being forthright about their realistic goals and working parameters.
This does not mean that one should keep negotiating until a deal is made, eschewing hard boundaries. Every party has the right to determine what lines they will and will not cross to bring an end to a dispute. But it’s critical to consider precisely how to signal that one is close to those boundaries. That should be done without dropping the “F-bomb.” It can be done with utter seriousness, or with humour, in ways that leave the door open to allow a good mediator to keep working to find a resolution.
Even “this is the last formal offer I’m willing to make today” leaves the door open for the mediator to tailor a package that will meet your needs and settle the case with only the smallest of further concessions. The savings and other advantages that come from closing a file justify making every effort to resolve a case, and throwing the “F word” into the mix can sabotage that end. Instead, counsel and parties can develop a more nuanced lexicon to signal they are almost out of room so they can close more of those challenging files.
Perhaps instead of the “F word” you can consider using the “A word” as in “This is almost my final offer.”