Dealing with impasse is an issue that arises in nearly every mediation that I handle. There are many different ways to address impasse depending on the circumstances of the particular mediation. In certain circumstances I like to suggest to the parties what is referred to as a mediator’s proposal. Determining the “certain circumstances” is more an art than a science but I generally consider a mediator’s proposal when all else has failed to break the impasse and when he impasse may be due in my perception to posturing on the part of one or both lawyers. Let me explain the process.
First, this is not something I will unilaterally do. All sides need to consent to the process and want me as a mediator to make this proposal. I will make the suggestion to all parties and if there are no objections I will proceed.
Second, there is a procedure to this process that must be followed in order for it to be effective. As silly as it may sound I insist that this process be followed exactly as outlined. If all parties agree I will ask them what would be a reasonable amount of time to expect a response to the proposal. I will explain that I will provide to them separately, and in writing, my proposal and they will have until the designated time to respond to me that they are ready to provide an answer to the proposal. I do not want the response from any party until all parties are ready to provide a response.
Third, when all parties are ready and able to respond I will ask for a simple “yes” or “no”. If all the responses are “yes” we have a settlement. Anything short of that there is no resolution.
Finally, some seem to think that the mediator’s proposal will always simply be the midpoint of the impasse. That is not necessarily true. I base my proposal on a number of factors. What is a reasonable settlement of this claim? What is a number that will be likely to get this case settled? Which party has the most to lose if the case does not get settled? My proposal is not always simply a midpoint.
As always, let me know if there are any questions.