The Mediator's Proposal

If the parties to a mediation seem to be at an impasse, a powerful and effective tool in the mediator’s toolbox is the “mediator’s proposal.” Here is how it works: the mediator makes the same proposal to each party and their attorney in private caucus. The parties respond confidentially only to the mediator if they would accept the proposal. The mediator does not disclose the party’s answers unless each party says yes. Each party can take the risk of saying yes without the other party knowing, unless they too say yes. If both parties say yes, they have an agreement.

If the mediator’s proposal is not accepted by both of the parties, the mediator announces that there is no settlement. The previous negotiations can resume or the parties could ask the mediator to make another proposal. Mediators who use this technique at the appropriate time report a high percentage of success, ranging from 80% to 90%.

The purpose of the mediator’s proposal is not to provide a case evaluation, but rather identify a Zone of Possible Agreement, ZOPA. Having listened to multiple offers and counteroffers, the stories, goals and interests of the parties, the mediator should know the barriers to agreement and the ZOPA. The mediator should have a good idea what an acceptable agreement might be within the ZOPA. Transparency regarding a mediator’s method in making the proposal is desirable from the standpoint of allaying any fears the parties might have about this process.

Helping You Pursue Alternative Conflict Resolution Methods

Too often, clients in family law cases spend substantial sums of money arguing about issues in court and often feel worse at the end of their case than before they started. At the Law Office of Tim Whitten, P.C., we are sensitive to this reality. This is why we explore alternatives to the traditional litigation approach such as Collaborative Divorce with each client as we help him or her identify long-term legal interests and goals. After our representation begins, we strive to be available and responsive to each client, to ensure that we stay on track with that client’s interests and goals.

If you have a family law need and you think that our style and philosophy may work for you, please contact the Law Office of Tim Whitten, P.C. We are dedicated to helping you and your family move forward peacefully. Our phone number is (512) 790-5066. You can also contact us online here.


*This topic is taken from the book, Mediation: A Practice Guide for Mediators, Lawyers, and Other Professionals by David A. Hoffman and The Boston Law Collaborative, LLC, published by Massachusetts Continuing Legal Education, Inc., Boston, 2013, pages 4-67 thru 4-68.

Categories: