Over the last few years, we are finding that more and more litigated cases are resolving at mediation through a “Mediator’s Proposal.” This trend can be seen as a failure of mediation as a dispute resolution process because the parties are not actually resolving the dispute during the mediation. If the Mediator’s Proposal ends the case though, then that does make a successful mediation, even if not as originally envisioned.
What is a Mediator’s Proposal?
A “Mediator’s Proposal” is exactly what is sounds like. It is a proposal to settle the case that comes from the Mediator. How does that happen? Typically a “Mediator’s Proposal” arises after a full-day of mediation and the parties have been are unable to reach a settlement. As a last ditch effort prior to resuming litigation, the parties empower the Mediator to make a settlement proposal which each side then has time to consider — i.e. the “Mediator’s Proposal”.
“But I thought Mediator’s Could Not Decide Cases”
They typically cannot, even with a Mediator’s Proposal. It is just a proposal. Either side may accept or reject the Mediator’s Proposal. If the both sides accept, then the case is settled. If EITHER side rejects the Mediator’s Proposal, the case proceeds to trial without either side knowing if the other side accepted.
Keys to a Successful Mediator’s Proposal
By the end of the day an effective mediator (1) will have established trust and respect with each parties and (2) will understand either (a) what a case is worth, or (b) more practically, the number where the parties will likely agree to settle. If the parties don’t trust the mediator (for whatever reason) or the mediator misunderstands the parties’ settlement ranges, the Mediator’s Proposal will likely fail. However, if the Mediator has established trust and respect, then his or her opinion of the case will carry weight with the Parties and their counsel, and in some cases will provide adequate “cover” for the attending party with the “powers that be” on the respective parties’ sides.
About Adishian Law Group, P.C. Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of September 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.
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