JAMS ADR Blog by Chris Poole
Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system. The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path. Early mediations were usually conducted without counsel in a highly facilitative model in which the parties and the mediator remained together for all or most of the session.
This model in legal mediations has, of course, largely given way as attorneys entered, and came to dominate, the process. Legal mediation today relies heavily on private caucusing and has largely abandoned any substantive joint session. Mediators are likely to be highly directive, if not explicitly evaluative, in pushing the parties to an agreement. Party autonomy has receded, while the power of attorneys and the mediator to influence the result has expanded. One result of this evolution is the growing use of the mediator’s proposal to bring about closure.
A frequently employed tactic, the mediator’s proposal, works like this: The parties have exhausted their ability to negotiate further. Neither side can in good conscience accept further compromises. But they are close enough to a deal that both sides appreciate that a final effort makes sense. Assume plaintiff is demanding $250,000, and defendant has offered $190,000. The mediator proposes a dollar number (or more detailed terms) between the two positions, based not on a legal evaluation of the case but on the mediator’s judgment as to a number that both sides are most likely to accept. A mediator may tell the parties that her proposal has nothing to do with Truth and Justice, but is the number her stomach tells her is most likely to draw two “Yes” responses. Each side may say “Yes” or “No.” If there are two “yes” responses, there is a settlement. If there is a “Yes” and a “No” or two “No’s,” the mediator says only that there is no settlement — without revealing the responses of either side. Therefore, each side knows that it may respond “Yes” secure in the knowledge that its compromise will never be disclosed unless there is a deal.
A busy legal mediator reports that he now uses a mediator’s proposal in about two-thirds of his cases. Why? First, it works. Neurological research teaches that reactive devaluation – the tendency to reject any proposal from an opponent – diminishes greatly when a neutral proposes the compromise. Second, attorneys with mediation experience have come to expect a mediator’s proposal and negotiate accordingly: intentionally leaving bargaining room open knowing that the mediator will propose the one final compromise. Thus cases that would likely have settled through party negotiation alone now arrive at impasse as each side anticipates a mediator’s proposal. Third, a mediator’s proposal allows the party representatives to feel — and to tell their bosses — that they held firm but the mediator “made them do it.”
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