Once upon a time some 35 years ago, mediation was talked about in the United States as a tool to cure dissatisfactions with the civil justice system. The great early teachers and scholars of mediation — Frank Sanders, Christopher Moore, Leonard Riskin and others — envisioned a process focused on party autonomy that would allow disputants not merely to resolve an immediate legal problem, but to reorient their personal or business relationships into a productive path. Early mediations were usually conducted without counsel in a highly facilitative model in which the parties and the mediator remained together for all or most of the session.

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A busy legal mediator reports that he now uses a mediator’s proposal in about two-thirds of his cases. Why? First, it works. Neurological research teaches that reactive devaluation – the tendency to reject any proposal from an opponent – diminishes greatly when a neutral proposes the compromise. Second, attorneys with mediation experience have come to expect a mediator’s proposal and negotiate accordingly: intentionally leaving bargaining room open knowing that the mediator will propose the one final compromise. Thus cases that would likely have settled through party negotiation alone now arrive at impasse as each side anticipates a mediator’s proposal. Third, a mediator’s proposal allows the party representatives to feel — and to tell their bosses — that they held firm but the mediator “made them do it.”

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