The end of the day is nearing and the mediation has ground to a halt. The parties have narrowed the gap between them, but cannot close it. Is it time to suggest a mediator’s proposal? Does a proposed settlement amount coming from the mediator have a reasonable likelihood of acceptance? Are the parties interested in having the mediator make a proposal? If the answer to these questions is yes, then it is time to employ the ultimate impasse busting technique, the mediator’s proposal.
But what amount should the mediator propose? Splitting the difference between the last demand and offer has undoubtedly been discussed with the parties and rejected. Otherwise, a mediator’s proposal would not be necessary. How does the mediator avoid the appearance of favoring one side over the other when the contemplated mediator’s proposal is closer to one party’s last position than the other’s? Should the mediator have a reasonable degree of confidence that the plaintiff will accept the proposed amount?Should the mediator have a reasonable degree of confidence that the defendant will pay the proposed amount? Is one of these factors more important than the other?