Mediation – What Goes into a Good Mediator’s Proposal?

I am personally not a huge fan of mediator’s proposal. I prefer for the parties, with guidance, to reach agreement on their own. Sometimes, this is not possible and the only way to resolve the dispute is for the mediator to step in and recommend the terms of a settlement.

In a recent mediation of a nuisance dispute between neighboring property owners, emotions were extremely high. Counsel for both parties recognized, from the outset, that the best resolution was for the parties to reach a negotiated agreement. Unfortunately, the clients were willing to fight tooth and nail to get their day in court. It was an exceedingly difficult mediation. We ended the day with the parties still far apart although the parties had made considerable progress. Recognizing that the parties would not be able to reach an agreement on their own, I advised the parties that I would spend some time thinking about the case and would then propose, in writing, a recommended resolution that would only be binding upon both parties agreeing to my recommendation.

There were a number of factors that went into my mediator’s proposal. It was not as easy as just proposing the midpoint to where the parties concluded their negotiations. I knew that would not resolve the case and I also understood that merely “splitting the baby” would not satisfy what the parties were hoping to obtain from my recommendation.

I then went back and did the necessary work to find what I believed was the best pathway to reach agreement. I analyzed the relative strengths and weaknesses of the parties’ claims and defenses, the costs to take the matter to trial and what I thought would be the most that defendant would be willing to pay in settlement and the least that plaintiff would be willing to accept in settlement. After going through this analysis and providing the parties with my settlement proposal, the parties accepted my recommendation. It was abundantly clear to me that, in the end, defendant paid more than he wanted to pay in settlement and plaintiff accepted less than he thought his case was worth. It was the hallmark of a perfect settlement.

So, what goes into a good mediator’s proposal? The best answer is a little bit of everything…