Modern Mediation: Post-Mediation Offers

When, despite your best efforts and good faith, your mediation fails to yield a settlement, you should consider delivering a written settlement offer or demand to your opponent outside of the mediation. This could be a formal Offer of Judgment or simply a clear written outline of your best offer.

It should not reference any of the mediation communications because those may be subject to strict mediation confidentiality (e.g. ORS 36.220(1)(a)). This way, should you later need to demonstrate your objective reasonableness in pursuing settlement, or your opponent’s lack thereof (See ORS 20.075(f)), you have something to show the Court that is not objectionable.