When parties and their counsel get antsy early on in a mediation, they often want to cut to the chase. “Can’t you just make a mediator’s proposal?” they ask.
This is generally a bad idea for several reasons. First, when it comes to negotiating, the old fashioned way is the best way while progress is being made. It often works, after all, and it keeps the potential outcome in the parties’ hands, which is where it ought to be—it’s their negotiation, not the mediator’s.
Second, the terms of a mediator’s proposal are primarily based on the mediator’s sense of what each side will ultimately need to settle a case. The mediator can’t gauge the likelihood of mutual acceptance of any particular set of settlement terms until he or she has worked with the parties to develop several offers, and passed these back and forth between them. Also, the parties themselves are unlikely to be ready for the final compromise a mediator’s proposal represents until they’ve considered a few proposals from the other side, and made a few compromises of their own position.
Third, it’s only through the shuttle diplomacy phase that a mediator learns all the resolution items that need to go into a mediator’s proposal. This includes items like the amount of money changing hands and when; the scope of the release, especially if the parties will have a continuing business relationship going forward after a partnership or LLC dispute; have agreed to a limited but continuing use of a trade name or other intellectual property that was at the heart of a dispute; or will remain living next door to each other in a condominium or tenancy-in-common case. Confidentiality, non-disparagement, attorney fees and the like should also go in if they have surfaced through prior negotiations. All these should be included in the mediator’s proposal, if possible, so they don’t linger into the settlement documentation phase.
Finally, because parties will be ceding some measure of control over the negotiations, your mediator should ask you—and your opponents—if you even want a mediator’s proposal before making one, and should take answers to even this preliminary question confidentially. Only if all sides want one should it be given—again, it’s the parties’ negotiation, not the mediator’s—and the process of asking first adds a measure of mutual “buy-in” to this change in the process.
The mediator’s proposal is a useful tool, but only once the spadework has been done. So parties should resist the temptation to lobby for one before they learn, and their neutral learns, what each needs to know for the procedure to be successful.
Visit www.sfbar.org/mediation for more information about BASF’s Mediation Services.
Matt Geyer has been on AAA arbitration panels since 1991, and mediating since 2003. He has been on BASF’s Bay Area Mediation Services panel since 2004.