To Do, or Not to Do: Mediator Views on the Merits

A consistent question in the realm of mediations is whether the mediator should express views on the merits of a matter, or, in the extreme case, make a “mediator’s proposal.”  The short answer, in this author’s view, is “not unless both parties request it.”  But the long answer, if one is honest about the process, is more grey.  The question does not invite a binary answer unless the mediator’s role is to make runs up and down a hallway conveying proposals and counter-proposals.  That adds no value.

At the least, a mediator needs to assist the parties by coaching their respective negotiating moves so that they progress toward a reachable solution.  This is particularly the case where an imbalance of power, or negotiating skill, exists.  It is simply not possible to do that without at least implicitly acknowledging the merits, for that is the BATNA against which the negotiation is inevitably conducted.  In other words, it is impossible for a mediator to assist the parties meaningfully without helping the parties to confront the alternative, namely not settling, and that is impossible without spotting the elephant in the room.

Thus, all mediators are “on the spectrum” between helping the parties to negotiate to a solution and dropping a mediator’s proposal on them.  The question is where the mediator lands on that spectrum, and the answer should be provided by the parties.  At the outset, the mediator should ask the parties whether they wish him or her to provide open views as to the merits and, potentially (e.g., if they insist on a firm deadline for the process) to provide a mediator’s proposal, but, in this author’s opinion, the inquiries should go further.  Separately, the mediator should explore with each party confidentially what role they wish him or her to play.  Only then can the mediator envision a process most likely to yield a successful result.  At that point, the mediator’s role is to facilitate the chosen process, but, as always, the parties are the ones mediating.

John C. Lenzen, FCIArb

popdevteamTo Do, or Not to Do: Mediator Views on the Merits