Overcoming Impasse with a Mediator Proposal

by Christina L. Scott, J.D.

Used typically in tort matters, a mediator proposal is a rare settlement suggestion offered to the parties post mediation, in an effort to break impasse.  This tool is only used when the mediator believes there is a very high probability of success and the gap between the parties is closer than parties perceive.  Like all things in mediation, agreement and consent by both parties is necessary for the mediator to proceed with the proposal. A mediator’s proposal is a one-time dollar amount that the mediator proposes at the end of the mediation, either immediately or a few days later. The amount proposed is not arbitrary. It is usually rooted in the mediator’s intuition and experience and represents what the mediator believes both parties would be willing to accept. It is not the mediator’s opinion of what is the “right” outcome of the case. 

Practically speaking, the mediator’s proposal works like this: After carefully assessing each party’s position, and all risks & costs of trial, the mediator will propose a settlement number that the mediator believes would be best for both parties. The proposal is done in writing, via confidential and separate emails to each party.  The proposal has a specific deadline and requires that each party respond either “Yes” or “No”.   Responses to the mediator’s proposal are confidential. Once the deadline has expired, the mediator will report that the matter is either “settled” or “not settled”.  Neither party knows whether the other accepted or rejected it unless both accept.   If accepted, the case settles for the proposed amount. If one party accepts and the other rejects, there is no settlement and the case will continue through the litigation process. Keep in mind that this tool is a last resort, after all other impasse breaking techniques have been exhausted.