If the parties seem to be at an impasse, a powerful and effective tool in the mediator’s toolbox is the “mediator’s proposal.” Here is how it works: the mediator makes the same proposal to each party in private caucus. The parties respond confidentially only to the mediator if they would accept the proposal. The mediator does not disclose the parties’ answers unless each party says yes. Each party can take the risk of saying yes without the other party knowing, unless they too say yes.
The purpose of the mediator’s proposal is not to provide a case evaluation, but rather identify a zone of possible agreement, ZOPA. Having listened to multiple offers and counteroffers, the stories, goals and interests of the parties, the mediator should know the barriers to agreement and the ZOPA. The mediator should have a good idea what acceptable agreement might be within the ZOPA. Transparency regarding a mediator’s method in making the proposal is desirable from the standpoint of allaying any fears the parties might have about this process.
If the mediator’s proposal is not accepted by one or both of the parties, the mediator announces that there is no settlement. The previous negotiations can resume or the parties could ask the mediator to make another proposal. Mediators, who use this technique at the appropriate time, report a high percentage of success, ranging from 80% to 90%.
This topic is taken from the book, Mediation: A Practice Guide for Mediators, Lawyers, and Other Professionals by David A. Hoffman and Boston Law Collaborative, LLC, published by Massachusetts Continuing Legal Education, Inc., Boston, 2013, pages 4-67 thru 4-68.
Quotes for the month: “I see people everywhere disagreeing, who actually agree with each other.” Bryant McGill
“In the middle of every difficulty lies opportunity.” Albert Einstein.
“You can’t shake hands with a clenched fist.” Indira Gandhi