Reviewing Mediator’s Proposals

Reviewing Mediator's Proposals

A mediator’s proposal is a settlement recommendation presented confidentially by the mediator as an extension of meaningful discussions with each party. When provided, a mediator’s proposal relays a set of terms that the mediator believes each party might accept as a basis upon which to resolve the conflict.

To be clear, a mediator’s proposal is not a substitute for substantive party negotiations. If the parties can find a solution on their own, it is the inherent and primary role of the mediator to help them find it. However, in situations in which the parties have worked hard, exhausted their negotiation authority, and a gap remains, sometimes all the parties need is a little outside assistance – a nudge – to keep the process moving forward. 

When a mediator’s proposal is extended, the question then becomes what to do with it. The answer depends on the specifics of each case, but in almost any case, the following points will jump start a thoughtful decision-making process: 

First, determine whether the mediation is one in which the parties are negotiating in good faith.  Because the hallmark of a mediated settlement is party self-determination, the success of mediation depends on the parties’ good faith willingness to work together to find a solution. If the parties are committed to the process and have exhausted their authority, a carefully drafted mediator’s proposal may offer a fresh perspective that helps the parties overcome sticking points to resolution. 

If the mediator extends a proposal, review it carefully and objectively to determine whether it proposes terms that are fair and reasonable, specific and clear. While a mediator’s proposal may recommend terms upon which to resolve the entire conflict, it can also be designed to address specific roadblocks that need to be cleared to keep the negotiations going. However broad or narrow it may be, a mediator’s proposal, to be credibly considered, should address each party’s respective needs and interests and recommend a balanced solution that does not unreasonably favor one party’s interests or needs over another. 

A mediator’s proposal is not a substitute for a neutral evaluation of the case. There should be no doubt in a party’s mind that the mediator’s proposal does not reflect an evaluation of any party’s legal case. When presented in writing, a best practice is for the mediator’s proposal to expressly state that it is not intended to be (and should not be construed as) an opinion on the meris to any party’s claims or defenses should a trial ensue.  

Importantly, the proposal should clearly communicate the process and deadline by which a response must be confidentially submitted to the mediator. While decisions about whether to request, consider, or accept a mediator’s proposal are to be made on a case-by-case basis, the process for accepting or rejecting a mediator’s proposal should always leave open the option of future negotiations if the proposal is rejected. 

To this end, the mediator should ensure that no party knows how another responds unless all parties accept the proposed terms. If it is not otherwise clearly stated, the parties should ensure the proposal clarifies they are to separately and confidentially contact the mediator with all questions and other communications concerning the proposal, including a timely response to accept or reject it.

Finally, whether the parties accept the proposal or not, the mediator should contemporaneously inform them whether or not a settlement has been reached.

DISCLAIMER: As with any mediated negotiation, decisions about whether to accept or reject any proposal should be considered in consultation with your legal counsel. Nothing in this article is, is intended to be, or should not be construed as, legal advice. 

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 25 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.

Dispute Resolution Strategies: Litigation & Mediation

Dispute Resolution Strategies: Litigation & Mediation

Both litigation and mediation are effective dispute resolution processes that serve important roles in our communities. Sometimes they are used in conjunction with each other, and sometimes they are not. When and why to litigate and/or mediate are decisions a party should make with the help of a lawyer. The following are just a few strategy insights to consider.

Before strategy-talk, it’s useful to understand some basic similarities and differences between litigation and mediation. 

The similarity first. Litigation is another word to describe a lawsuit. Lawsuits are simply one avenue available to parties to resolve disputes. Mediation, like litigation, is also a dispute resolution process. Both are effective dispute resolution techniques; but, that’s really about where the similarities end and the differences begin.

So, the first difference to understand is the nature of the process.

Lawsuits are by their nature adversarial proceedings. Lawsuits get filed when parties are not able to agree on a way to effectively resolve their differences. Within the confines of a lawsuit, lawyers argue their respective client’s positions to persuade a decisionmaker – either a judge or jury – to agree with their respective client’s positions. The parties do not control how the trial will end. Instead, through a lawsuit, parties are essentially asking a branch of our government – the judicial branch – to decide for them how and when a dispute will be resolved.  

By contrast, mediation is a structured negotiation between the parties that takes place either because the parties have agreed to mediate, or a court has ordered the parties to mediate. In other words, while parties may seek to persuade their opponent to the strength of a position in mediation, through the assistance of a neutral mediator, the parties’ goal in mediation is not to over-power their opponent, but rather to build a bridge with an opponent to find a mutually agreeable path to resolve the dispute.

Next, lawsuits and mediated negotiations occur in different settings.

Lawsuits play out in a public forum – the courthouse. And, because the United States has an open courts system, most filings made in a lawsuit, and the related proceedings (for example hearings and trials), are matters of public record. What this means is that just about anyone can get access to information the parties file and the court uses to make decisions in most cases, including transcripts of hearings and testimony, if any are made. 

By contrast, mediated negotiations happen in a private setting, like a conference room. And, generally, those negotiations are and remain protected as confidential. What this means is that, subject to a few exceptions, parties can freely negotiate through a neutral mediator knowing that negotiation positions are not going to be the subject of a later trial examination if a settlement is not reached.

 

Another key difference between a lawsuit and mediation is how the neutral is selected.

In a lawsuit, judges are elected to office by voters, and once on the bench, cases are assigned by the clerk’s office through an impartial process the parties do not control. Similarly, as many of us have seen on Boston Legal, CSI, A Few Good Men, or some other lawyer-like shows, litigants really have very little control over who serves on a jury. It may be that the lawsuit involves a very novel or complex set of facts, or technology, or emotional issues – issues that the randomly-assigned decisionmakers – judges or prospective jurors – may have little or, sometimes, no prior experience with.

By contrast, when parties agree to mediate, not only do they get to select the mediator, the parties, their counsel, and the mediator will work together as active participants in the mediation process. The goal of the mediator is to help the parties — the only decisionmakers in a mediation – to evaluate and decide how they want to end their conflict.

While mediators may also be lawyers, mediators do not give legal advice or make any decisions. Instead, a mediator’s role is to encourage the parties – with the guidance and input from their lawyers – to consider ways they can resolve their dispute. When the parties feel stuck, a mediator may ask questions or make suggestions to help them evaluate their case or brainstorm ways to bridge their differences and find common ground for a resolution.

What can happen at the end of a trial, and what can happen at the end of a mediation, are also two things to be mindful of.

At the end of a trial, the judge or jury will reach a verdict, decisions upon which the court will then enter judgment. Once the judgment is entered, if one party (or both) do not like the judgment, they each have a right to at least one appeal. In essence, the trial judge or jury’s decision may not be the final say.

When successful, mediation ends with a written settlement agreement, which is intended to bring an end to the dispute. In fact, sometimes parties are able to resolve their dispute in a mediation that occurs even before a lawsuit is filed.

If mediation is not successful, a mediator will let the parties know that they are at an impasse, after which the parties are at liberty to continue efforts to resolve their disputes through the court system.

If an impasse occurs that does not mean the mediation was a waste of time. Often, even when the parties are not able to completely resolve their dispute in mediation, they find the mediation process assisted them in narrowing the issues, or at least getting a better handle on the strengths and weaknesses of their respective cases. This insight often leaves open the parties’ interest in continued negotiations in the future.

Most mediators know this and will stay in touch with the parties’ counsel by checking in periodically and offer to assist the parties either with another mediation session, or through informal measures, such as telephone calls and emails.

How quickly a dispute can be resolved through litigation and mediation is a difference that can be measured in time and money.

It’s not uncommon for parties to wait several years before a lawsuit is tried. During the period of time leading up to trial, the lawyers, witnesses, and others will usually spend considerable time and money collecting and evaluating evidence, witnesses, and positions. The whole process can be quite expensive, stressful, and distracting to one’s daily schedule.

By contrast, many disputes have been resolved (as discussed above) through a concentrated and focused effort to meaningfully negotiate over the course of a half- or full-day’s time. The cost of the mediator, and the investment of a few days or weeks preparing for mediation, can be significantly appealing to some litigants.

So whether or not to mediate or file a lawsuit first, when to mediate if a lawsuit is filed, and who to enlist to serve a the neutral mediator are among the things parties, with the assistance of their counsel, consider when evaluating one’s dispute resolution options.

Felicia Harris Hoss

is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.