Understanding and Presenting a Mediator’s Proposal

A mediator’s proposal is essentially a settlement suggestion issued when negotiations reach impasse. The mediator proposes a dollar amount—or a set of terms—and asks each side to accept or reject it confidentially. If both sides accept, the case settles. If either declines, no one learns the other’s decision, preserving leverage and confidentiality. Clients sometimes view this as the mediator passing judgment, but it is not. A proposal is the mediator’s best estimate of where resolution may realistically lie, not a verdict on the case. 

The Lawyer’s Role: From Interpreter to Advisor 

Your job as a lawyer is not to parrot the proposal, but to interpret it through the lens of your client’s risks, costs and objectives. This involves four key steps: 

1. Place the proposal in context. 

Start by explaining where the proposed settlement amount fits in the arc of negotiations. How does it compare to the last offer and demand? Does it represent real movement by the other side, or is it simply midpoint arithmetic? Clients need this context to appreciate whether the mediator is offering something new or merely reframing the stalemate. 

2. Evaluate the legal merits and risks. 

Next, measure the proposal against the likely outcomes of litigation. Discuss liability strengths and weaknesses, potential damages and procedural risks such as dispositive motions or appeals. Clients must understand that even strong cases face uncertainty in court. Reminding them that juries can award less—or nothing—grounds their decision in reality. 

3. Account for litigation costs and certainty. 

Settlement value is not just about the number on the page. Litigation involves attorneys’ fees, expert costs and years of time. Even a favorable verdict can be eroded by appeals or collection risks. Comparing those potential costs against the certainty of settlement helps clients see the proposal not as a compromise of principle, but as an avoidance of waste. 

4. Weigh broader considerations. 

Finally, explore non-economic factors. Will settlement preserve a business relationship worth saving? Provide closure that litigation cannot? Protect a reputation within an industry or community? These considerations often matter as much as dollars. They also overlap with strategy: Sometimes acceptance ends a conflict decisively, whereas rejection preserves leverage for further talks. 

Communicating the Proposal to Your Client 

How you deliver the mediator’s proposal is as important as what you say. 

1. Start with a neutral presentation. 

Begin by stating the proposal plainly: “The mediator has proposed settlement at $X.” Resist adding immediate commentary so the client has space to react. 

2. Frame the choices clearly. 

Lay out the paths forward: Accept the proposal and achieve certainty, or reject the proposal and prepare for litigation, with its attendant costs and risks. Explore variations if the other side appears willing to negotiate further. Clients appreciate seeing defined options rather than abstract pros and cons. 

3. Provide guidance without pressure. 

After outlining the choices, offer candid advice without coercion. Statements such as “This proposal is within a reasonable settlement range” and “If you reject this, we must be prepared for the following risks” strike the right balance between professional recommendation and client autonomy. 

Anticipating Client Concerns 

Certain questions arise regularly when a mediator’s proposal is presented: 

“Does this mean the mediator thinks we will lose?” 

Clarify that the proposal is not a prediction but rather an effort to bridge the gap. 

“What if the other side rejects it?” 

Reassure the client that confidentiality protects them; no one will know the other side’s decision unless both sides accept. 

“Are we leaving money on the table?” 

Return to the cost-versus-certainty analysis. Settlement provides closure, whereas trial remains a gamble with escalating expenses. 

Final Thoughts

A mediator’s proposal can feel like the final crossroad in a dispute. For the lawyer, the challenge is to analyze it with rigor, present it with clarity and guide the client toward a thoughtful decision. By contextualizing the number, measuring it against both legal risks and litigation costs, and acknowledging broader goals, you provide the tools your client needs to decide wisely. Whether the proposal is accepted or declined, your measured approach makes sure the client’s decision is informed, deliberate and aligned with their broader interests—fulfilling role as both advocate and trusted counselor. 

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice.  If you require legal or professional advice, please contact an attorney.