The Mediator’s Dilemma: Will a Mediator’s Number Help or Hurt?
The Mediator’s Dilemma:
Will a Mediator’s Number Help or Hurt?
My first exposure to a mediator’s number was about 25 years ago. I was representing a party in a will dispute. The mediator was a retired judge who told us he didn’t need to hear opening statements. The mediator met with the other party first. Not more than 5 minutes later, he walked into our caucus room and declared, “I told those guys in the other room that both parties are just going to have to split things down the middle.” Our mediator didn’t call it a mediator’s number, but that’s what it was. Although we eventually settled the case, both parties and both lawyers were upset and disappointed with the mediator and the entire process. Our retired judge short-circuited the process and forgot to be a mediator.
That bad experience taught me some valuable lessons about best practices when proposing a mediator’s number. The mediator’s number is a valuable tool, but only when it is used at the right time and with the consent of all the parties. When used properly, the mediator’s number can help bring the parties to the finish line.
A key principle of mediation is self-determination of the parties. The mediator’s goal should be to help the parties reach a voluntary, mutually agreeable settlement – not to strong-arm the parties into settlement. The decision to propose a “mediator’s number” to the parties is a nuanced one. The mediator must consider the timing, the parties’ receptiveness, and the overall dynamics of the mediation process. There are several factors the mediator should consider before proposing a mediator’s number:
1. Timing: The best time for the mediator to propose a number is after all parties have fully expressed their interests, concerns, and positions and they have absorbed information about the other party’s perspective. It’s important for the mediator to learn more about the parties, their interests, and their positions than what might be apparent from the mediation position papers or the opening statements.
2. Readiness of Parties: The parties must be ready to hear and consider compromise solutions. This readiness often comes after the parties have recognized the strengths and weaknesses of their own and the other party’s positions, the potential risks of not settling, and the benefits of resolving the dispute. This usually occurs after several rounds of offers and demands.
3. Stalemate or Impasse: A mediator’s number can be particularly useful when negotiations have reached an impasse, and the parties seem unable to move closer on their own. A proposal from the mediator can help to break the impasse.
4. When Asked by the Parties: Sometimes, parties or their attorneys request the mediator’s input on what they consider a fair or reasonable resolution. This direct request can be an ideal time for the mediator to propose a number, as it shows that the parties are open to third-party suggestions.
5. Avoiding Premature Suggestions: Proposing a number too early in the process can be risky, even if it was requested by one of the parties. A premature mediator’s number may anchor negotiations at an unrealistic level and the proposal will not have the benefit of full development of the facts, the law, and the parties’ positions and interests.
Mediators must use their judgment, experience, and the specific context of the mediation to decide when and if to propose a mediator’s number. Careless use of the mediator’s number can doom a mediation to failure, but skilled use can settle the case.
