Unwelcome mediator's proposals are trial counsel's single biggest mediation headache. Done correctly, a mediator's proposal builds on prior negotiations, manifests the parties' unspoken intent to settle and bridges the gap to closure. Done poorly, a mediator's proposal is a bell that cannot be unrung. It emboldens the side it favors, making the case more difficult to settle while alienating counsel and clients.

Best practices for mediators:

1. Before making a mediator's proposal, make sure that it is what the parties want. If you are not sure, don't do it.
2. Build on prior negotiations.
3. Allow time for consideration and securing authority

1. In the first caucus, inquire about the mediator's thoughts, philosophy, practices and procedures re: mediator's proposals.
2. Instruct the mediator that he may not make a mediator's proposal without your express permission.
3. Keep a watchful eye during the mediation's final third, so you can either head off or shape a mediator's proposal.
4. As a last resort, terminate the mediation. It will be easier to restart the negotiations than to repair an unwelcome mediator's proposal.