ADR CORNER
ADR CORNER
Mediator’ s Proposal— Sometimes a Silver Bullet( Continued)
HANK JACKSON
Potential Disadvantages of the Mediator’ s Proposal
Indiscriminate use of a mediator’ s proposal can have disadvantages. If used too early, it can short-circuit a robust evaluation of the case. When used too frequently, the parties may anticipate its use and posture for what they believe will be the mediator’ s proposal.
Mediation often requires time for the participants to work through complex factual and legal issues, deal with personal and emotional dynamics, and explore various settlement alternatives. If the mediator’ s proposal is offered too soon, the parties may not have had sufficient opportunity to consider and address all the factors needed to settle the case. Moreover, because the mediator’ s proposal is the one last chance to settle before impasse, restarting settlement negotiations after a rejected mediator’ s proposal can be difficult. As a result, it is best used only when all participants agree that the mediation is truly at impasse.
The mediator’ s proposal should also not become routine. If the parties expect that a proposal will be forthcoming, they may hold back meaningful settlement movement in the hope that a firmer negotiating position will influence the eventual mediator’ s proposal more in their favor. the mediator of how the case should settle, what the case is worth, or what a judge or jury would award.
Conclusion
When used properly, the mediator’ s proposal sometimes serves as a silver bullet in mediations that are otherwise destined for impasse.
Hank Jackson was a litigator at Am Law 100 and Am Law 200 law firms for 35 years before founding Hank Jackson PLLC— Mediation Services. He is a Florida Supreme Court Certified Civil Circuit Mediator and is Board Certified in Business Litigation by the Florida Bar. He can be reached at 561- 271-1878 or hank @ hankjacksonlegal. com, or by visiting http:// hankjacksonlegal. com.
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Maintaining Mediator Neutrality and Preserving Self-Determination:
Some critics argue that the mediator’ s proposal can compromise the mediator’ s neutrality or interfere with the parties’ self-determination in reaching a voluntary settlement. That concern is best addressed by a clear understanding of what the mediator’ s proposal is— and what it is not. Simply stated, it is one final settlement option presented at the end of mediation. In essence, the mediator asks each party:“ Would you agree to these terms if the other parties also agree?” It is not a declaration by
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