I have never been a great fan of mediator’s proposals. I took the view that the mediator’s job, done well, was to help the parties to come to a solution themselves. Party autonomy and all that. Achieving a satisfactory outcome, I thought, shouldn’t require a specific suggestion by the mediator.
I have changed my view. As usual, experience is a great teacher. As is improvisation. Here’s what happened. After several hours of to-ing and fro-ing, and with a still significant gap between them, the mediator brought the principals together to meet with him, without their legal advisers (and with the advisers’ permission and encouragement). They talked for a while about their respective claims and approaches and what they thought they could and couldn’t do. By this time, at least, they were treating each other with respect- and listening.
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The learning: never be dogmatic, be prepared to improvise, take sensible risks, trust parties’ instincts, not everything needs to be said, create environments for creative problem-solving by parties, help them in whatever way seems useful…..and take them with you always….
