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The Whys and Hows of a Mediator’s Proposal
It is a common refrain in mediations, “how about making a mediator’s proposal?” The answer frequently is “not yet” or “that’s not what I want to do.” What are the details behind the concept of a “mediator’s proposal” and when is it appropriate to be offered by the mediator and accepted by the parties?
Mediation is a voluntary process where the parties try to resolve their differences without litigation or arbitration and frequently with the assistance of a neutral, a mediator. It generally is not adjudicative but requires the mutual assent by the parties to resolve their dispute. The mediator serves a very different role than a judge or arbitrator. The mediator tries to be a facilitator to get the parties to an agreement. To be effective, the mediator must be well versed in the dispute and the parties’ respective contentions. The mediator employs the tools of reasoning, challenging, suggesting and cajoling, often playing “devil’s advocate” regarding weaknesses and strengths in the various positions.