By Dr. Ken Broda Bahm:
Mediators have a delicate job. They know it isn’t their role to praise or blame a party. It isn’t their role to take sides. To do so means sacrificing their credibility and their effectiveness along with it. But the tougher question is whether a commitment to stick to facilitation, rather than advocacy, also entails a commitment to avoid a proposal of their own. A “mediator’s proposal” is a third option that is sometimes offered by the neutral party in order to break an impasse and facilitate a solution that makes both sides comfortable. But it is a controversial idea. Some say it is never appropriate and the mediator ceases to be a mediator when they begin to argue for their own solution. Others say that it can be a practical aid in bringing parties to a settlement that would otherwise be out of reach.
Intrigued by this question of whether a mediator should ever advocate, I searched for research or opinion on it and there isn’t much. In fact, the best material I found — with the greatest diversity of perspectives, reasons, and examples — isn’t an article at all, but a very active discussion in a LinkedIn group. At the end of last year, Austin mediator and attorney Ben Cunningham posed a question to the Alternate Dispute Resolution (ADR) Professionals group entitled, “A New Hornets Nest: What Are Your Thoughts on a ‘Mediators Proposal’ as a Tool to Use When the Parties Have Been Unable to Reach an Agreement?”1 In a total of 41 comments from 35 individuals (so far), the responses to that question have ranged from “yes, often,” to “sometimes,” to “no” and even “hell, no.” Drawing from the ideas shared by the many professionals in this discussion, this post aims to boil down a list of specific conditions that parties could use to determine when their mediator should have a voice in the form of a mediator’s proposal.
Why Might a Moderator’s Proposal Be a Good Idea?
With the aid of a skilled facilitator, parties can often come to their own joint decision, and that is naturally the ultimate goal of mediation. In those cases, a proposal from the mediator isn’t necessary and can harm the perceived neutrality that is key to the relationship between the mediator and each of the parties. In other cases, however, the parties’ views of the cases are tainted by selective perception and “ego-centrism,” or the tendency to see the case through only their own filters and to discount the perceptions and arguments of adversaries. In a case like that, a third view might serve as an essential reality check.
There is also the chance that the mediator’s own experience in settling might play a very important role in helping to set a fair and realistic value. The parties and their trial counsel are often thinking about what the likely judge or jury will do with the case. But is that the fair benchmark now that a vast majority (nine out of ten, at least) are resolved without trial? To illustrate, mediator Sam Margulies wrote about the settlement of divorce cases in a piece carried by Psychology Today. Since divorce cases are almost never settled in trial these days, it no longer makes sense for a potential jury’s decision to be a point of reference for evaluating the fairness of the result. Instead, the norms of settlement serve as a far more powerful and relevant check than the few exceptional trial verdicts. And if norms matter more than trial results, who has the best access to settlement norms? An experienced mediator does.
If a mediator applies that experience by offering a proposal, then the question is whether they are helping or hurting. In reviewing the LinkedIn discussion, Al Tetrault, a Florida mediator, draws a distinction in the LinkedIn discussion between the “purists” who eschew any proposals offered by a mediator, and the “pragmatists” who see it as an opportunity in some circumstances. Just speaking from the perspective of a communications consultant who advises litigators, the pragmatists seem to have the advantage in recognizing that the situation is complex and recognizing, that in some circumstances, the careful use of a mediator’s proposal can play a constructive role. The key is to use it carefully and only under certain conditions.
Consider Using a Mediator’s Proposal When…
There is an Impasse. Many of those participating in the LinkedIn discussion agreed that a mediator’s proposal is not a tool to be used early on, but instead should be reached for only when other items in the mediators’ tool box (asking questions, reframing, etc.) have failed. When the alternative is to end mediation without settlement, then a mediator’s proposal can serve as “a tool of last resort,” as San Diego mediator Michael Orfield put it. Even where the proposal isn’t accepted, a new idea can restart communication by offering a “what if” solution, giving parties what Massachusetts mediator Richard Tillberg called “a tool to allow the parties to see how a solution might look rather than a solution in and of itself.” Jennifer Keaton, an Atlanta Mediator, continues, “I find that it often will work well when the dispute is between individuals who are basically at the end of the negotiation and very close to meeting ‘in the middle,’ but who still view accepting ‘the other guy’s proposal’ as the other side winning (as if it was an auction bid) and, necessarily, that they have lost. ??When I put the proposal out there at the right time and in the right manner, it helps shake off the emotion and win-lose baggage for some folks so that they can make a deal.”
There is Permission. Parties in a dispute obviously need to take responsibility for the result and for the process of arriving at that result. They, and not the mediator, need to own it. Paul J. Van Osselaer, an insurance mediator, explained, “without consent by all parties, it can create an unnecessary tension with the party not wanting one — with them seeing it as the mediator and the party wanting [a mediator’s proposal] as ganging up.” So mediators should not offer solutions off-the-cuff, but should instead ask the parties, “would it help you if I made my own recommendation?” and then only proceed when both sides say “yes.”
There isn’t Case Assessment. The mediator’s proposal in itself should not reflect the mediator’s personal assessment of the case. It should not be a view of worth, but a view of what works. That might sound counterintuitive, as I’ve argued recently that parties should base valuation on realistic case values. The mediator, however, has a different role. As George C. Reid of Atlanta put it, “I always state to the parties that my only criteria in making a proposal is whether it is something that might work. I make it clear that I am not judging the case but, after spending hours with each side, I frequently develop a sense about what might work to break a deadlock.”
There is No Disadvantage to Parties in Subsequent Negotiation. George C. Reid was the first in the LinkedIn discussion to emphasize a process to avoid the concerns parties often have of making an offer and then “ending the negotiation with their acceptance being the starting point for a future negotiation.” In other words, if a mediator’s proposal is $100,000 and the defendant says “yes” while the plaintiff says “no,” then a figure accepted in the spirit of compromise may function as the floor for future negotiations. The solution is to provide a double-blind process such that neither side knows the other’s decision unless or until it is mutual. As Detroit mediator Barry Goldman put it, “Either party can accept or reject my number. But if you reject, you never get to find out whether the other side accepted or not.”
It is worth reemphasizing the novelty that the content laying out these four conditions emerges from a LinkedIn discussion. Thinking back to the dawn of electronic discussions (yes, I’m old enough to have been there), it seems like most fora have devolved into either bulletin boards for mundane information, or into fighting arenas for flame-driven arguments. It is refreshing to see that LinkedIn has bucked the trend so far and offers many dozens, if not hundreds, of places for litigators and those who are part of the process to engage in reasoned and practical dialogue.
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Posts in the Settlement Series:
- Break Through the Barriers: Part One
- Don’t Play Chicken With Your Case: Part Two
- Know When to Give Your Mediator a Voice: Part Three (This Post)
- Don’t Forget About Happiness: Part Four
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Other Posts on Mediation:
- No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume They’re Neutral
- Be More Realistic Than Your Opponent
- Say Your Sorries and Settle Already
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1Note, this LinkedIn group is members only. If you click it a.) while logged in, and b.) when you are a member of the group, the link will work. Otherwise, I’ve tried in the post to summarize the main perspectives on the question.
Photo Credit: Mike Licht, NotionsCapital.com, Flickr Creative Commons