A Win-Win for all Participants
Most or all of you are familiar with the concept of a “mediator’s proposal.” You have come to the point in the mediation when both sides are in a potential zone of agreement but not yet at the finish line, and no one is moving. The stall may be due to posturing, fatigue, or any number of factors. Maybe one side is summarily dismissing any offer that comes from the opposing party just because of its source (called “reactive devaluation”). If in the mediator’s judgment there is a workable number somewhere between the most recent offer and demand, that number may be presented to the parties as a potential settlement in the form of a mediator’s proposal. Rather than being the mediator's prediction of the most likely result at trial or arbitration, instead it reflects the mediator’s judgment as to a number that is most likely to settle the case. The potential acceptance of the number may be a bit of a stretch for both sides, but not enough of a stretch to foreclose settlement. If used judiciously, and in the right case, it often results in a settlement.
Before I make a mediator’s proposal, I ask each side if they are interested in receiving one. If the answer is yes, I let them know how I have and haven't reached the number; in other words, I don’t make this proposal based on whom I believe will “win” or upon what I believe to be fair under the circumstances, but upon what is most likely to stimulate settlement.
From the standpoint of academic mediation theory, some ADR professionals view the proposal as contrary to pure "facilitative mediation" because the mediator becomes involved (too involved?) in the numerical outcome (pure facilitative mediation is a process in which the mediator offers no opinions or evaluation, but simply serves as a go between for the parties). However, participants often explicitly solicit the mediator's evaluation; therefore, in practical application and in this context, I like to give them what they want, as long as it's mutually requested and ethical.
In terms of mechanics, it usually works like this: Each side in private caucus is presented with the mediator’s proposed number, and is asked to respond to the proposal with a “yes” or “no.” If there are 2 “yes” votes, the mediator announces the settlement. If there are 2 “no” votes or a “yes” and a “no”, the mediator announces that there is no settlement, and does not disclose how each side voted. In the case of a split vote, no one loses face. The side that said "no" will not gain any psychological or tactical advantage by knowing that the opposition would have taken the offer. No information is communicated to either side beyond the fact that a settlement has not been reached.
What happens if the proposal does not result in a settlement? There is no reason for negotiations to stop. In fact, the occasional “failure” of the proposal may serve as a springboard to continuing discussions and an eventual settlement at a number close to the original proposal.
Don't hesitate to ask your mediator if a mediator's proposal is worthy of discussion. In the words and wisdom of many of our mothers (including mine), "It couldn't hurt!"
"Give Thanks for Unknown Blessings
Already on Their Way"
Native American Blessing
I look forward to seeing you soon.
I am a Court approved mediation panelist
for the Superior Courts of Santa Barbara, Ventura, San Luis Obispo; United States District Court (Central District); and Resolute Systems, LLC
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