The Problem with Mediator Settlement Proposals

November 1, 2011|Publications

Written by Valerie Edwards and originally published by Torkin Manes (November 2011).

During the course of a mediation, the parties might invite the mediator to suggest a settlement figure, or alternatively, the mediator might decide to throw out a number (with or without asking for counsel’s agreement). Mediator proposals are tempting, as they can be useful in getting past a roadblock. However, they have to be used with great care and, in my opinion, only when counsel agree to this approach.

For mediation to be effective, the parties and their lawyers have to develop a certain level of trust and rapport with the mediator. Even more importantly, counsel must know that their bargaining position after a failed mediation will not be prejudiced by the mediation process.

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