What tools are available when negotiations during a mediation begin to break down, with counsel and their clients becoming frustrated and irritated?
To try to avoid an impasse, counsel may ask the mediator to employ the “silver bullet” method, or the “mediator’s proposal” method. But not all mediators use these methods in the same way. To avoid misunderstandings, always have the mediator define these options, and advise the parties of how he or she will execute either option.
Generally, for a “silver bullet,” the mediator asks each party, privately and confidentially, to provide their bottom-line settlement number. If the two numbers match, the mediator advises the parties that there is a settlement. If the two numbers overlap, the mediator splits the difference and advises the parties that there is a settlement. If the two numbers do not match or overlap, the mediator advises the parties that the matter has impassed (although if the numbers are close, negotiations should continue).
Another “silver bullet” mediation technique at the point of impasse simply involves the mediator confidentially proposing the same number to each party to see if each party might be willing to accept rather than impasse.
The “mediator’s proposal” requires the mediator to assess the amount each party would reluctantly accept to get the matter settled. Importantly, the mediator’s proposal is not intended to reflect how a judge or jury would decide the dispute. The mediator’s proposal, in essence, overcomes bruised egos and hurt feelings with the neutral mediator attempting to bridge the gap using objectivity. The decision to settle is still left to each party. The mediator proposes terms of settlement he or she believes all parties will begrudgingly accept. The mediator’s proposal is usually made in writing to each party, with a deadline for each party to confidentially respond only to the mediator. Importantly, the mediator does not disclose either party’s response unless both parties agree to the proposal. If both parties decline the mediator’s proposal, there is no settlement and the mediator merely advises all parties that there is no settlement. If one party accepts and the other party declines, there is no settlement and the mediator merely advises all parties that there is no settlement. Only if all parties accept the mediator’s proposal will the mediator advise that the matter has settled. The advantage of a mediator’s proposal is that a party can secretly accept a proposal without hurting its position in future negotiations if the other party declines the proposal.