The goal of mediation is not always compromise. Rather, the goal of mediation is agreement, and compromise is only one tool to achieving that goal. Another tool is a change of perspective, of viewpoint, to confirm your strategic objectives and available tactical targets. Another tool is taking the time to learn an opponent’s objectives, rather than trusting your own ideas or beliefs about that opponent’s goals.
These observations were reinforced for me in two recent successful mediations of commercial contractual disputes and were implemented by using successive, iterative mediator’s proposals under the time pressure of approaching arbitration deadlines and increasing cost deposit invoices. Mediator’s proposals are commonly used to permit parties to safely consider a resolution, to which they might stretch for final agreement, but which they are unwilling to assert as a negotiable position. With a mediator’s proposal, the parties are invited to respond confidentially and only to the mediator about whether they could accept the proposed resolution; however, only if both sides agree are their responses disclosed to their opponent. Mediators frequently use these confidential proposals to close the final gap in a financial negotiation.
Using Mediator’s Proposals in Commercial Cases
In two recent contract dispute mediations, attorneys sought to use mediation when progress stalled or just wasn’t getting started to find a negotiated solution to a dispute-driven deteriorating relationship. One case involved in-house counsel for the respective parties; the other was managed by litigation (arbitration) counsel retained to handle a problem-specific dispute.
In both cases, the attorneys were familiar with mediation as a litigation-closing device, although some of their client-party representatives may not have been. In each case, I convened an initial general session with counsel and party representatives, with subsequent, same-day breakout caucus meetings. However, no discernable progress toward resolution was achieved by the parties in those first mediation sessions. In each case, however, I summarized the parties’ respective positions and possible compromises of the disputed issues in the form of a mediator’s proposal.
None of us (parties, counsel or me, the mediator) really expected the proposal to solve the dispute on the first try, but after I collected the confidential responses (both written and oral) from each party, I issued a second, mediation-privileged proposal that revised the elements of the first proposal and added proposed resolution of some additional points of contention.
Providing the parties with repeated written proposals, and letting the parties provide me with privileged responses, gave the mediation process the opportunity to develop an improved proposal that could be simultaneously accepted by each side. In one case, eight or nine sequential written mediator’s proposals were needed, along with two additional mediation meetings several months apart, to resolve the case. In the other case, in-house counsel for each party were able to see the projected path of the mediated revisions. They began exchanging revised drafts directly and no longer needed my involvement to facilitate bringing the negotiation to closure.
Using Mediator’s Proposals
As these two recent examples indicate, a mediator’s proposal (and successive mediator’s proposals) can be a valuable tool in the negotiation process. The mediator’s involvement can provide an impartial, dispassionate review of the positions of the parties and a fresh expression of the issues as they were summarized in the mediator’s proposals.
The mediator’s assertion of proposed solutions can reduce the parties’ concerns that their candid assertion of objectives would be seized by an opponent as a target to be negotiated away from. Sequential written proposals can provide clarity about the progress of the negotiation and the current proposal under consideration.
Note that with mediator’s proposals, both parties’ best and final positions are kept confidential (as they evolve), until they can be merged into a proposal which becomes acceptable to both sides, while decision-making authority continues to be retained by the parties.
Finally, not every case requires a mediator’s proposal. But in cases where the parties seem resistant to compromise, a thoughtful mediator’s proposal — or successive meditator’s proposals —can be a tool you consider using to help the parties reach resolution. In commercial cases with multiple issues, successive written proposals can help keep the negotiation on track. There is a risk that some parties or attorneys will delay decision until a mediator’s proposal demonstrates that they’ve held on as long as possible, but in many cases, successive proposals can resolve the dispute and offer a long-term solution.
Robins Brice is a mediator and arbitrator at Miles Mediation & Arbitration in Houston.