December 28, 2017 Practice Points

The “Mediator’s Proposal”

Two national mediators discuss how close parties need to be to consider this approach to settling a case

by Jeff Kichaven and Paul Van Osselaer

Jeff Kichaven: The mediator’s proposal is like cross-examination: The best cross-examiners never ask a question unless they know the answer. The best mediators never make a mediator’s proposal unless they know it will be accepted. How do mediators do this?

First, there’s timing. When most of the gap has been closed and you sense the aroma of settlement, but the bargaining stalls and nobody wants to blink, that’s the best time for a mediator’s proposal.

Then, there’s planning. I like to get counsel’s permission to make a mediator’s proposal. I also discuss possible numbers with counsel and don’t like to make a mediator’s proposal unless all counsel agree to recommend the number to their clients. With those recommendations, we’re likely to succeed.

Premium Content For:
  • Litigation Section
Join - Now