The Mediator's Proposal: An Idea Whose Times Has Passed?
Are mediators being hook-winked by clients who create artificial impasses for the purpose of procuring a favorable mediator's proposal? Does the mediator's recommendation carry so much weight that the parties are subject to a manipulated mediator's proffer? Does the mediator become just a tool of a party bent on flim-flam? Or is all distributive bargaining flim-flam?
Check out John DeGroote's in-house point of view over at Settlement Perspectives and leave a comment. I've already left two there myself.
I understand some lawyers are settling all their cases with mediators' proposals. Why is that? Are they savvier than their colleagues? Or do they just need the authority of the mediator to "sell" settlement to their clients?
Jump in here or over at John's place. Whether you're a mediator, a litigator, or a client, we'd both appreciate your fresh ideas.
Comments (2)
Read through and enter the discussion by using the form at the endColm Brannigan - December 14, 2008 10:36 AM
Is it really mediation, if the mediator does this or early neutral evaluation?
While we need to listen to what our clients want, we also need to be careful over naming the actual process we are using!
Vickie - December 14, 2008 12:16 PM
Perhaps you don't use mediator's proposals in Canada, Colm. Mediators' proposals are made after a facilitated primarily distributive bargaining session reaches impasse. The parties ask for a mediator's proposal or the mediator suggests that one be made. As John DeGroote explains in his post on the issue:
"A mediator’s proposal is a set of settlement terms advanced by a mediator in an effort to settle a dispute when the parties have reached an impasse. The mediator’s proposal is made on a double-blind basis to all parties in separate communications; the parties are asked to accept or reject the terms as proposed, with no modification or counteroffer, within a specific time frame.
"The typical mediator’s proposal leaves those involved with only two possible outcomes: settlement or continued impasse."
In my opinion, this means of settling litigation has become all too common. Although the parties can, of course, reject it, it diminishes party self-determination. If one or both of the parties refuse the proposal, it will have a strong effect on the remainder of the negotiations because it sets a new anchor with the added authority of third-party "approval."