A good friend called me a couple of weeks ago and said that he had recently been in a mediation in San Antonio and towards the afternoon the subject of the mediator doing a proposal to help break an impasse came up. And the mediator said, “If I can get the permission of both sides I would be happy to try a proposal”. So my friend says, “Will, what is he talking about? You don’t need both sides to give you permission, do you?” I may not have given this much thought until last week an experienced lawyer participating in a mediation as an observer asked me the very same question. So lucky you, I will put an end to this issue right now!
Short answer: no. A mediator does not need the permission of either party to do a proposal. I often will let the lawyers know I am thinking about one, and for fun may mention that I intend to try a proposal whether anyone wants me to or not! In fact, I may give one a try in the face of an objection to my doing so! I mean, how is anyone going to stop me? And once it’s sent, I don’t think there is any ambiguity as to whether a lawyer has a duty to share the proposal with the client.
Here is where the confusion may rest: some view the “mediator’s proposal” as a “recommendation” based on the mediator’s “neutral evaluation”. I do not. My proposals do not use the words “recommendation” or “evaluation”. My proposals are just terms that I feel might draw two “yes” responses. That’s it. But if someone viewed the proposal as a recommendation or evaluation, then I agree, the mediator absolutely would need the blessing of both sides to offer it up.
Even though I am an evaluative mediator, I take very seriously my obligation to be neutral in all things. Advocating for a position, making a recommendation, would not be a neutral event, in my opinion.