A Mediator's Recommendation

At some point in every mediation, often more than once, the parties reach an impasse. These first occur when the parties reach the lower (or upper) end of their pre-determined settlement goal range or within striking distance. That is the range in which they would love to settle the case or dispute. Unfortunately, many mediations prematurely end at that point. The zone of possible agreement (“ZOPA”) is likely between those two points. Without some effort, the parties never get there.

Many tools are available to the parties and the mediator to help move beyond this perceived impasse: brackets, brainstorming, re-assessing the parties’ best alternative to a negotiated agreement (“BATNA”), and going to the balcony. Today, we’re going to discuss the mediator’s proposal.

The mediator’s proposal is particularly helpful when the parties are at such odds that they would never agree to anything suggested by the other side – even if it were in their best interest. Hopefully, by the time the parties reach this perceived impasse, they will be past such feelings. But we must never underestimate the tenacity of hard feelings. If the negotiations have been particularly difficult or there was some vast miscalculation of the ZOPA or the lack of meaningful preparation, hard feelings can easily multiply.

This might be an ideal time for a mediator’s proposal, either for a resolution, a partial resolution, or a bracket. While they can take many forms, these are the types I’m referring to. I don’t think a mediator’s proposal should be the first or go-to tool to use when an impasse occurs. A mediator’s recommendation can be interpreted to undermine the mediator's independent, neutral, third-party status. Reserving them until the situation is ripe is important.

Here is what it looks like:

• The mediator makes a proposal (for a settlement, partial settlement, bracket, etc.).

• The proposal is not the mediator’s assessment or valuation of the case but simply a point at which the parties might agree.

• The fact that it comes from the mediator is the key to its success.

• The mediator makes the proposal to both parties independently but concurrently.

• He then gets their responses – yes or no.

• He does not share the responses between the parties. The other’s response will only be shared if both say yes. In other words, if one party says no, they will not know whether the other side said yes or no.

• Even if both parties say no, the recommendation might serve to bust the log jam in the negotiations.

If the mediator is to continue functioning as a mediator after that, it should be clear that the recommendation was not the mediator’s opinion of who is right or wrong or what the resolution should be. It is simply a recommendation of where the matter might be resolved. A mediator’s proposal, if used effectively, can allow the mediator to still function as such. Used sparingly, they can be very effective.