Mediator's Proposals

As a mediator who is more than a potted plant, you should have plenty of tools to implement when an impasse occurs. Like any home DIY project, the right tool for the right job is critical. Not every tool works in every situation. A 5-pound sledgehammer is great for driving a stake, but not so well-suited for hanging pictures. The same is true of the wide variety of techniques, tips, and tricks available to mediators. One is the mediator’s proposal.

In a mediator proposal, the mediator makes a settlement recommendation independently to each side. If either side rejects it, there is no deal, and neither is told what the other said. While the person saying yes would know that the other said no if there is no deal, the party who says no doesn’t know whether the other said yes. If both accept the proposal, the deal is done.

What are the pros of using a mediator’s proposal?

They often provide the justification that one or more sides need for settling at that number. While the agreement, of course, is ultimately the parties’, the recommendation can prove persuasive. Even if one side rejects the proposal, it might provide the basis for a later resolution or further moves by the parties.

The cons of a mediator’s proposal include that it can make the mediator’s further involvement in negotiations very challenging.

First, one or more of the parties may interpret the recommendation as “favorable” to the other side, thus interfering with the party’s perception of the mediator’s neutrality. The mediator’s recommendation may be interpreted as their “opinion” of the value or settlement value of the case, which can also make further efforts at mediating difficult as the parties may believe the mediator is trying to push the parties to a particular settlement amount. It can also have the effect of anchoring, which could prevent the parties from settling at that number if they believe someone is taking away their right to choose a resolution.

An alternative to a mediator’s recommendation on settlement might be a mediator’s recommendation for a bracket. This would be a recommendation for moves by both sides after which the parties take up negotiations from there.

In addition to you having an appreciation for the pros and cons of a mediator’s proposal, it is important that the parties understand them, as well. In the frustrating throes of a lengthy negotiation session, a party may be quick to agree to move forward with the process without thinking it through, without realizing that further efforts at settlement with the help of this mediator may be difficult.

As with most tools available to the mediator, one cannot say never or always when it comes to a mediator’s proposal. There will be situations for which it is right and situations for which it is not. Realize that you have this tool but don’t be wed to using it every time. And remember, you are more than a potted plant!