As we have said in previous blog posts, the field of mediation has changed. The Joint Session has become a thing of the past and many mediators attempt to make their work easier by presenting a Mediator’s Proposal in the mediation process. About 37 years ago, mediation was thought of as a way to cure dissatisfaction within the civil system. Party autonomy and the right to come up with personalized solutions were thought of as benefits of mediation. In the early days, mediation was conducted by the mediator and the parties. However, this changed when attorneys entered the field. Today, mediators and attorneys are more involved in the process and usually dictate it by pushing the parties to an agreement through a Mediator’s Proposal.
A Mediator’s Proposal begins when parties cannot agree on any settlement, but they have invested enough time in the process that they want to make a final effort to finish the dispute. The mediator comes in and uses his/her judgment to come to a settlement. For example, assume that the plaintiff is demanding $100,000. The defendant, however, only wants to give $75,000. The mediator uses his/her judgement to propose an appropriate amount. Each side gets to agree or disagree with the amount. A final settlement is only reached when both sides say yes. This allows the parties involved to rest assured that their compromise will be not disclosed unless a final deal is reached.
Martin Quinn, the author of this article, asked a mediator why he prefers to use a Mediator’s Proposal during mediation. Here are the reasons the mediator gave:
- A Mediator’s Proposal works. We often have a tendency to reject any offers from the other party simply because we have become accustomed to think of them as our opponent. This changes when a mediator steps in and proposes a settlement.
- Attorneys expect a Mediator’s Proposal and have started to negotiate accordingly.
- A Proposal allows party representatives to feel as if they tried their best and held their ground. They say the mediator was the one that made them take the settlement offer.
Source referenced: Mediate.com