Modern Mediation: The Mediator's Proposal

There is nothing more confounding for a mediator than the so-called “mediator’s proposal.” 

It goes something like this:  The parties spend a full day meeting separately with the mediator.  The mediator shuttles back and forth with offers and demands they know will not be acceptable to the other party.  The parties appear stuck – at an impasse—and if someone doesn’t blink, the mediation will come to an unsatisfying end.  And that’s when the mediator (or one of the parties) suggests that the mediator should attempt to bridge the divide by making a mediator’s proposal.  After all, the mediator has had all day to evaluate the claims and defenses, and to size up the parties’ respective degrees of resolve.  The mediator may be in the best position to cut through the parties’ posturing and put their finger on the “right” number.  By conditioning the proposal as double-blind (neither party learns whether the other party accepted the proposal unless both parties accept it), the parties don’t diminish their settlement position by saying yes. 

The mediator’s proposal can be an effective tool, for sure.  But it needs to be used sparingly and strategically.  If parties know their mediator will make one whenever the mediation is stalled, they will stake out seemingly intransigent positions that send signals they hope will cause the mediator to propose a number closer to their prayer or defense.  They will try to use the mediator as a negotiating tool, rather than a sounding board or empathetic ear.  But mediation is not just about identifying the right settlement number.  It works best when the parties use it to test their cases and to be heard and understood.  Parties who collaborate with the mediator are more likely to have a satisfying mediation experience because they have more control over the outcome.

Choose a mediator who is patient and who listens, not one who just tries to get the right number.