I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.
I have rather changed my view, though perhaps only at the margins. As usual, experience is a great teacher. As is improvisation. Here’s roughly what happened.
After several hours of to-ing and fro-ing in a difficult property matter, and with a still significant gap between them, the mediator brought the principals together in his room to meet with him, without their legal advisers (but with the advisers’ specific permission and encouragement). They talked for a while about their respective claims and approaches and what they thought they could and couldn’t do. By this time, at least, they were treating each other with respect- and listening.
There came a point when it was obvious that neither could, or would, move further. Normally, at such a time, the mediator would resort to shuttle negotiation, trying to help the parties to narrow the gap. On this occasion, he asked them if they would engage in an experiment. They agreed. To the claimant, let’s call him Peter, he asked the question: “Based on what you have heard from her, how much do you think [Jen] will actually be willing to pay to resolve this?” To Jen, the question was: “…….how little do you think Peter will be willing to take?”
The mediator asked them to write down their respective answers on a piece of paper and hand them to the mediator. He said he would discuss the answers with them if he thought that could help them. After adjusting the numbers for interest and tax implications, he could see that the figures were closer than those in the traditional bargaining they had undertaken, understandably. That gave him a lever to pull on.
The mediator indicated to the principals that, with this approach, they were closer than before. That seemed to please them.
He asked if they would be willing to permit him to select a number and give each of them a piece of paper with the number on it. All they had to do, as in the conventional mediator proposal tradition, was to mark it with a “Y” or a “N”. He selected a number a little less than the figure indicated by Jen but significantly more than Peter’s. It wasn’t his view of a figure which would achieve a resolution. He wanted to create some room for movement and to test the resolve of each. One said Yes and one said No.
The mediator then ended the joint meeting and spoke with one principal privately. The principal indicated that just a little movement was needed, to produce a figure the board would live with. If the other principal could propose this figure, it would be acceptable. With that principal’s permission, the mediator took this to the other party who said that, if that figure would be accepted, it could be offered, albeit by overriding some resistance in the legal team. The mediator brought them back together and they did the deal themselves.
There was an apparent asymmetry in the approach here. The figure was at the top end of the range revealed in the first written disclosure of figures to the mediator. However, in so far as one could ever offer a view on the merits, that asymmetry probably reflected the relative strengths of the parties’ legal cases as the principals had come to appreciate, albeit without acknowledgement, in their conversation.
The learning: never be dogmatic, be prepared to improvise, take sensible risks, trust parties’ instincts, not everything needs to be said, create environments for creative problem-solving by parties, help them in whatever way seems useful…..and take them with you always….