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Mediator’ s Proposal— Sometimes a Silver Bullet
HANK JACKSON
The term“ silver bullet” derives from folklore: a werewolf could only be killed by shooting it with a silver bullet. Today, the term more generally refers to a seemingly magical solution to a complex problem.
Mediators have employed their own silver bullet in mediations for decades. Although some still refer to it as a silver bullet, the more modern and descriptive term is“ mediator’ s proposal.” Its longstanding use reflects its value as a mediation strategy, but it is best used selectively.
What Prompts the Mediator’ s Proposal?
Despite sustained effort by the mediation participants, progress toward closing the settlement gap can stall. The parties may become unwilling to make further concessions or settlement proposals, making impasse imminent.
Something is needed to break the stalemate— a silver bullet. Enter the mediator’ s proposal.
What is the Mediator’ s Proposal?
The mediator’ s proposal is not defined by statute or case law. It is a matter of custom and practice. The mediator’ s proposal is a final settlement option crafted by the mediator with safeguards that protect each party’ s last settlement position if the proposal is not accepted. The typical steps are as follows:
•( 1) The mediator formulates a final( take it or leave it) settlement proposal.
•( 2) The mediator communicates the proposal to each party.
•( 3) Each party separately and in confidence advises the mediator whether they will accept or reject the proposal.
•( 4) If any party rejects the proposal, the mediator informs the parties only that all parties have not accepted the proposal and the mediation is an impasse.
•( 5) If all parties accept the proposal, the mediator informs all parties of everyone’ s acceptance and the settlement is finalized.
Advantages of the Mediator’ s Proposal:
The primary advantages of the mediator’ s proposal are twofold: first, participation in the process does not jeopardize a party’ s prior settlement position if settlement is not reached; and second, the parties receive one final opportunity to evaluate and consider settlement before impasse is declared.
Confidential Nature of the Proposal:
Often parties will settle for an amount other than their last stated settlement position. However, they may believe the parties are so far apart that making another settlement offer will almost certainly be rejected and will needlessly weaken their negotiating posture. Under the mediator’ s proposal, a party’ s acceptance is not disclosed to the other parties unless all parties accept. A party that rejects the mediator’ s proposal will never know whether the other parties accepted it. If the proposal is rejected, all parties leave the mediation with their last settlement offer being the one communicated before the mediator’ s proposal.
A Focused Last Chance:
Although persistence is frequently essential to a successful mediation, impasse sometimes becomes unavoidable. The mediator’ s proposal provides one final opportunity before impasse, creating focus and a clear decision point for the parties. It is an opportunity for the parties
( without the concern of negotiation posture) to evaluate and consider whether to settle or continue the litigation.
( Continued on next page)
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