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Getting Past Impasse with Mediator Settlement Recommendations

The Advocate Files: Mediation and Settlement

 

Toronto Settlement Counsel and Dispute Resolution Mediator Mitchell Rose

Getting Past Impasse with Mediator Settlement Recommendations

By Mitchell Rose
Toronto Mediator and Settlement Counsel

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 at 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.

Our firm’s mediators blend interest-based and evaluative approaches. The precise blend depends on the circumstances and mediator. We often, but not always, make settlement recommendations.

The “no one gets hurt” model:

I often refer to my personal approach to 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.
  • The mediator is 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.
  • 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’s no deal. The parties could then choose whether or not they wished to continue their discussions. Thus, no one gets hurt.
  • 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 idea behind this approach is to preserve party autonomy and bargaining power (to do no harm) while maximizing efficiency and the chances of settlement that comes with a mediator recommendation.

For information about mediator recommendations, or to learn more about the mediation services we offer, please contact Mitchell Rose.

 

Does this article speak to you? Was it helpful?

The points discussed above are from a lawyer that focuses his practice on settlement and mediation. If you require a Mediator in Toronto or wish to discuss how Settlement Counsel can help you, call Mitchell Rose for details.

View the profile of this ADR Mediator Toronto.

 

This and other articles / posts originally appeared on the now defunct Advocate Daily. As expressed in writing by that website’s owner, the articles / posts, part of a paid service provided by Advocate Daily, are the intellectual property of the lawyer and/or legal service provider who wrote, or for whom the article / post was written and they are free to use as they wish. All articles / posts redeployed on Top Lawyers™ are done with the expressed consent of the Canadian lawyers and other professionals mentioned in said article / post.

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