We have often written about the rise of mediator’s proposals on this blog. While some legal scholars criticize the new trend, other are willing to accept the new way to end disputes. John Sturrock is on the same boat. Although he was not originally a fan of mediator’s proposals, he changed his mind after the experience outlined below.
After two principles and their legal advisers were going at each other for hours without reaching a settlement, a mediator decided to talk to the principles (without their legal advisers). Both parties agreed to talk and actually had a good conversation where they showed respect for one another and talked about what exactly they wanted. Then came the point where neither would move further with the dispute. The mediator asked the claimant how much he thought the other party would be willing to pay. The claimant wrote his answer on a piece of paper. The mediator then turned to the other party and asked him how little how thought the claimant would be willing to accept. The mediator looked at both they numbers and informed the parties they were closer to a settlement.
He then wrote down a number himself, based on the numbers the two parties provided, and asked the principals to write yes or no next to the amount. One principal wrote yes, but the other wrote no. The mediator spoke to one of the principals privately and learned that he had a figure in mind. The mediator proposed this figure to the other party and he agreed with the offer. The two principals had sealed the deal and reached a settlement.
For John Sturrock, this approach seemed to be remarkable. Not only did the parties finally agree to an settlement, they closed the deal themselves. The lessons Sturrock learned from this particular mediation session were that one should always be willing to compromise, trust parties’ instincts, take sensible risks, and create an environment where problem-solving is encouraged. Experiencing a mediator’s proposal in action changed Sturrock’s mind about the merits of the new trend. While he was quick to change his mind, there are many legal experts and attorneys who still do not believe in the effectiveness or efficiency of a mediator’s proposal. As the practice of mediator’s proposals is increasing, we look forward to what other legal expert and attorneys think of the matter.
Source referenced: Kluwer Mediation