Getting Past Impasse With Mediator Settlement Recommendations

  • January 24, 2017
  • Mitchell Rose

Getting past impasse

Reaching the end of a mediation session and learning that you and the other side are far apart in your settlement position can be disappointing. In the following weeks, after the dust settles, the mediator may follow up with you to see if positions have softened, or if there is a new way of resolving the dispute. However, despite everyone’s best efforts, there may still be an impasse.

In a final attempt to resolve the dispute – whether at mediation or some later point – you might ask the mediator to recommend (or, to propose) settlement terms to both sides in the hope of reaching a deal.

Mediator recommendations

In fact, sometimes, legal representatives or parties ask mediators early in the process: “What do you think we should do?” The response will often depend upon the type of mediation model utilized by the mediator.

For example:

Mediators using a pure “interests-based” model may resist making settlement recommendations at any stage. To them, it’s the parties’ dispute and the mediator is only a facilitator.

Contrast this with an “evaluative” approach: An evaluative mediator often makes a recommendation early in the process based upon what they think a judge or arbitrator would do. The evaluative mediator may then attempt to persuade the participants to accept the recommendation.

However, as a mediator, I blend interest-based and evaluative approaches. The precise blend depends on the circumstances and mediator. I often, but not always, make settlement recommendations.

The “No one gets hurt” model

In addition, I often refer to my personal approach to making mediator recommendations as “No one gets hurt”.

Here’s how it works:

  • It’s preferable if the parties settle their own case without a mediator recommendation. Thus, a recommendation is not the default approach.
  • However, a mediator recommendation is useful as a last resort to break an impasse.
  • It’s ideal if one or both sides request a recommendation, as opposed to the mediator offering one.
  • Regardless, both sides must agree to hear the mediator recommendation before it is given. It’s also governed by privilege.
  • As a mediator, I am not providing a prediction of outcome if the case were to go to Court. The recommendation is a practical solution that the mediator suggests is better than the alternative of not settling. It is based on the totality of what the mediator has seen and heard during the course of the mediation.
  • The mediator will not discuss the recommendation with the parties or their legal representatives other than for clarification purposes. The mediator is simply looking for a “yes” or a “no” answer.
  • There is no settlement unless both sides agree to the actual recommendation.
  • The parties are asked to respond to the mediator recommendation privately and confidentially. Thus, the answer is not provided in the same room as the other side, nor on the same conference call or email if the recommendation is made following the in-person mediation session.
  • Each side will know if the other side accepts the recommendation only if both sides accept it. If just one side says “yes” to the mediator privately, the “no” side will not learn about that response. Everyone would simply be advised that there is “no deal”. The parties could then choose whether or not they wished to continue their discussions.
  • If both sides say “yes” then the mediator promptly advises both sides. The legal representatives will prepare minutes of settlement (a written settlement agreement to be signed by the parties) based on the accepted recommendation. The mediator remains involved to assist the parties in the event any issues arise.
  • There are other conditions that may be appropriate, depending on the circumstances.

The central ideas behind this approach is to preserve party autonomy and bargaining power (which is part of the mediator’s mandate, which is to “do no harm”) while maximizing efficiency and the chances of settlement that comes with a mediator recommendation.

About the author

Mitchell Rose is a Lawyer, Chartered Mediator and Settlement Counsel with Stancer, Gossin, Rose LLP in Toronto. He is a member of the ADR Section Executive of the Ontario Bar Association. 

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