In recent Dutch research,* the vast majority (67%) of lawyers and companies (78%) indicate being in favor of a mediator's proposal: a proposal from the mediator for a possible solution when the mediation is at risk of failing.
Mediation often encounters critical junctures where resolution seems elusive. One powerful tool in a mediator’s toolkit for such scenarios is the mediator’s proposal. In this blog, we'll explore what a mediator’s proposal entails, its effectiveness, and crucial steps and guidelines how to use it.
What is a Mediator’s Proposal?
In essence, a mediator's proposal is a potential solution suggested by the mediator when the mediation reaches impasse. It can take various forms, such as an informal oral proposal, a settlement proposal, a settlement range, or a detailed proposal based on the identified interests of the parties. The goal is to demonstrate that a coherent solution is feasible even when negotiations appear to be deadlocked.
Breaking Through Impasse: A Strategic Tool
Contrary to viewing a mediator’s proposal as a final "take it or leave it" intervention, it can be more versatile. While often perceived as addressing only financial gaps, a mediator’s proposal, when involving more than just a number, opens avenues for discussion and potential adjustments. It can serve as inspiration for further exploration of solution directions.
Understanding the Nuances: Another Tool in the Kit
Understanding the nuances of a mediator's proposal adds another tool to break through impasse in the last stages of a mediation.
Steps and Guidelines: Do’s and Don’ts
Implementing a mediator’s proposal requires a careful approach:
Assess applicability: First check that you used other available tools like reality testing, and have sufficiently explored interests, concerns, needs, and motivations, addressing relationship, communication, and emotional aspects.
Assess feasibility: Determine if a mediator's proposal has a chance of success by evaluating the size of differences.
Informed consent: Both parties must provide informed consent to the procedure, ensuring autonomy. Discuss the proposal separately with each party first.
Clearly define the proposal: Clearly define whether the mediator proposal involves an amount, a specific issue, a comprehensive solution based on identified interests, or a range for further negotiations.
Prepare the proposal: It's not about what you, as a mediator, find a reasonable proposal, what is legally or factually correct, using a (legal) norm as a justification. You consider the positions and interests of both parties and base your proposal on that. So you prepare a feasible proposal, considering what is better for both parties than their alternative. Therefore, the mediator’s proposal can never be a proposal/position of one of the parties.
Test or pretest a range: Before presenting a final proposal, pretest a range by asking each party hypothetical questions separately to gauge reactions. Example of a check and pretesting: Check the Range: To party A: "Suppose that B would be willing to settle within a range of €400,000 to €550,000, how would you react?" To party B: "Suppose that A would be willing to settle within a range of €550,000 to €700,000, how would you react?" Test: To party A: "If my mediator's proposal were to fall within a range of €400,000 to €550,000, could you come to an agreement?" To party B: "If my mediator's proposal were to fall within a range of €550,000 to €700,000, could you come to an agreement?" In both cases, in this example, it seems that €550,000 would still be acceptable for both parties if there were a positive response.
Simultaneous Review: All participants receive the proposal simultaneously with time to think and consult.
Negotiation Possibilities: Depending on the agreed rules, there may be a simple yes or no, or the mediator may consult with both parties for potential adjustments. Note that party autonomy remains paramount: parties are never bound to the mediator's proposal.
Individual Responses: The mediator discusses acceptance with each party separately. If one party says 'no,' the other's response remains confidential to them.
Mediation Outcome: If both parties accept, the mediation continues, and agreements are documented. If not, the mediator ends the mediation.
Understanding the nuances of a mediator's proposal adds another tool in the mediators toolkit to break through impasse in the last stages of a mediation. * ZAM-ACB 2018 & PBM-Montaigne 2024