Negotiation Law Blog - Mediators' Proposals: the Good, the Bad and the Ugly - Comments http://www.negotiationlawblog.com/ Southern California Arbitration Mediation & Conflict Resolution: Settle it Now Dispute Resolution Services: Serving Los Angeles, Beverly Hills, Century City en Copyright 2012 Fri, 23 Mar 2012 01:00:57 -0800 Fri, 23 Mar 2012 01:00:57 -0800 http://www.sixapart.com/movabletype/?v=4.32-en http://blogs.law.harvard.edu/tech/rss Peter Victoria, as an experienced mediator, I never suggest a mediator proposal to the parties. To me, that is my own admission of defeat. Moreover, if as you rightly suggest, parties even game the mediator, our job is to never give up and to keep the settlement discussions and ideas moving in such a way that, sooner or later, the parties have nowhere to hide and a settlement just happens. True, I have had parties ask me to give them my suggestion for settlement terms - and I have done so - but I caution them that, from my prespective, that is the point of no return. From that point onward, it will be difficult for one or both of them to view me as a neutral and, the more discussion and debate we have over my proposal, the more I am forced into the role of defending it. Bottom line, I view mediator proposals as the absolute last resort.

That is not to say, however, that I don't occasionally give the parties tools to use to bridge the final gap in terms. In that circumstance, I am not giving them the final terms but suggesting a process they can use to achieve them on their own.

Peter

]]> http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22550 http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22550 AdvocacyConflict ResolutionDeal MakingLegal PracticeMediationMoneyNegotiationNegotiation Strategy and TacticsPower of PersuasionSocial Psychology Sun, 12 Jul 2009 12:45:44 -0800 Victoria Pynchon Sandra C. Upchurch, Mediation Counse, Upchurch Watson White and Max Mediation Group I do not endorse mediator proposals either. What is the idea of negotiation, communication and conflict resolution if the neutral mediator gets to add in his/her two cents worth and thereby change the entire landscape with yet another party's perceptions, biases, etc... I got "gamed" once and ended up relaying to one party's attorney in private my view of the value of the case - to my surprise the case settled at that number but that was far from my intention and I was uncomfortable with my role in the outcome. The attorney relayed that figure to the client, the client respected me and my thoughts served as confirmation of what he had been told by his attorney. It all worked out but I left wishing I had more diplomatically addressed the "What do you think this case is worth?" question.

]]> http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22551 http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22551 AdvocacyConflict ResolutionDeal MakingLegal PracticeMediationMoneyNegotiationNegotiation Strategy and TacticsPower of PersuasionSocial Psychology Sun, 12 Jul 2009 12:45:44 -0800 Victoria Pynchon Vickie Thanks for dropping by to comment Peter and Sandra. As Sandra notes, I too have regretted giving the parties my own opinion of the value of the case. You can never escape it and it does sour at least one side's view of your neutrality and tends to put the side who favors the evaluation to get his or her feet stuck in stone. The longer I practice, the better I am at asking questions and re-directing the parties back to what their view is after a little reality-testing on both sides. After all, we do not see evidence nor hear sworn testimony. I am a negotiation facilitator, not a judge.

]]> http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22552 http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22552 AdvocacyConflict ResolutionDeal MakingLegal PracticeMediationMoneyNegotiationNegotiation Strategy and TacticsPower of PersuasionSocial Psychology Sun, 12 Jul 2009 12:45:44 -0800 Victoria Pynchon Joe Markowitz Thanks for articulating some excellent reasons for being uncomfortable with mediator's proposals. I don't like them, either when I'm representing a party in a mediation or when I'm acting as the mediator.

When representing a party, I have found that the mediator's proposal can backfire because it leaves you no more room to negotiate. So if the proposal is for a number different from what your side or the other side will accept, you then have to undercut the mediator to settle the case.

When acting as a mediator, I usually resist making a proposal even when the parties ask me to. I am more comfortable telling them the range that I think the case could settle at.

My latest thoughts on resolving impasse are at http://www.mediate-la.com/2009/07/dynamics-of-impasse.html

]]> http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22553 http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22553 AdvocacyConflict ResolutionDeal MakingLegal PracticeMediationMoneyNegotiationNegotiation Strategy and TacticsPower of PersuasionSocial Psychology Sun, 12 Jul 2009 12:45:44 -0800 Victoria Pynchon John DeGroote Vickie--

A great post on mediator's proposals -- thank you for further exploring this important topic.

I was interested to hear about your personal experiences with mediator's proposals as a settlement tool. In one instance you were manipulated by someone who wanted a mediator's proposal, and in another case it appears you were criticized for offering one. But you offered a mediator's proposal in each of these cases for a reason -- lawyers and their clients ask for them. And lawyers and their clients ask for them because they work. Not always, but they work. As you mentioned, I have my issues with mediator's proposals, but that doesn't mean that I won't, or don't, ask for them.

Near the end of your post you say that, in lieu of mediator's proposals in the recent past, you have "suggested alternative ways of achieving resolution, at least one or more of which settled the case in every case where the parties asked for a mediator's proposal." At the risk of asking for the special sauce, I sure hope you'll tell us what some of those alternative ways have been.

Vickie, you really add to the conversation on some important topics. Thank you.

John DeGroote

]]> http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22554 http://www.negotiationlawblog.com/mediation/mediators-proposals-the-good-the-bad-and-the-ugly/#22554 AdvocacyConflict ResolutionDeal MakingLegal PracticeMediationMoneyNegotiationNegotiation Strategy and TacticsPower of PersuasionSocial Psychology Sun, 12 Jul 2009 12:45:44 -0800 Victoria Pynchon