Attorney John DeGroote, in his Settlement Perspectives blog, wrote last week about "The Mediator's Proposal: A Great Tool For Yesterday's Disputes." As John defines it, a "mediator's proposal" is:
"...a set of settlement terms advanced by a mediator in an effort to settle a dispute when the parties have reached an impasse. The mediator's proposal is made on a double-blind basis to all parties in separate communications; the parties are asked to accept or reject the terms as proposed, with no modification or counteroffer, within a specific time frame."
This impasse breaking tool, in John's view, is far too accessible, and as a result, may be creating more deadlocks than it solves. Calling to mind the old Mad Magazine cartoon "Spy v. Spy," in which Spy White and Spy Black engaged in acts of espionage to elicit responses that could be met with predictable countermeasures, John suggests that sophisticated counsel in many mediations are now purposefully working towards an impasse rather than towards a settlement, knowing that a mediator's proposal will be forthcoming. In his words,
"Compromise is no longer the goal of the mediation exercise; instead it becomes a play to the 'neutral,' whose power to craft the mediation proposal will make her the real decisionmaker."
John's observation and "Spy v. Spy" analogy, like everything on his blog, are insightful and well crafted. So am I worried that by making a mediator's proposal in any of my future mediations I may be working against the fundamental principles of mediator neutrality and party self-determination? Or that I will be creating more deadlocks than I am breaking? No.
First, the notion that the potential for a mediator's proposal will cause the parties to "play" the mediator rather than mediate in good faith assumes that most counsel are not already "playing" the mediator anyway. My observation is that most good counsel are always doing a little bit of both. As a mediator, I expect that, and don't hold it against the client.
Second, at least under my idea of what a "mediator's proposal" should represent, each party's effort and movement prior to the mediator's proposal are relevant to the formulation of the proposal. I would not offer a mediator's proposal unless the parties have made significant progress towards settlement, there is a discrete and manageable distance remaining between them, and they both seek my input. In that case, my proposal is intended to suggest a way for them to finish what they have started but cannot conclude despite their best efforts, and further mediation is not possible. A party who "hangs back" in the mediation process cannot safely assume that my proposal will simply "split the baby."
Finally, I think most lawyers will have more confidence in their ability to negotiate effectively through good faith mediation than they will have in their ability to double think me (a la "Spy v. Spy") into an advantageous mediator's proposal.
In the truest sense, a "mediator's proposal" is not mediation at all, and if it becomes more than an occasionally used closing technique, the process might better be called a neutral case evaluation. But as long as parties are showing up to mediate, and cases are getting settled, I can deal with the possibility that somebody is trying to outsmart me. Let's not forget, Spy White and Spy Black each lost an equal number of their encounters.
[Image: A postcard with the public domain "me worry?" face that later inspired Mad magazine's Alfred E. Neuman]