Alabama Mediator: Is Mediator's Proposal a Last Resort?

Rodney Max, a principal of the Upchurch Watson White & Max Mediation Group, has spoken on the art of  negotiation and mediation before audiences of attorneys and business executives for years. Most recently, he was named Lawyer of the Year 2015 in the mediation category for both the Birmingham, Ala., and Miami metropolitan areas by Best Lawyers. He also shares writings on these topics and has updated them for the firm's resources page. To schedule a mediation with Mr. Max, please call his case manager, Heather Lariscy, at 800-264-2622 or visit our online scheduling page.



My Upchurch Watson White & Max colleagues and I recently discussed the concept of a Mediator's Proposal (MP), which gave me the opportunity to lay out my position on this mediation tool.

For me, the polestars for the mediation process generally are mutuality and self determination. From beginning to end, we are facilitating the process to accommodate the positions of the parties with the need to achieve a mutuality through self determination. So too it is with an MP – will both sides accept the concept? And, if so, will both sides accept the amount, range or other concept that makes up the MP?

The real issue becomes when or how the MP is introduced into the process. Can it be a “tool” to achieve a mutual and self determined result?

While my approach places the use of MP at the very end of the list of options after all other options are exhausted or declined, the MP can be an appropriate tool for our use when invited (by the parties). When considered, it is always a two-step approach:

1. Do they mutually accept the concept of considering the MP? And
2. If so, what is the number (based upon what I believe the reachable “stretch” can be)?

I have used MP’s in a variety of ways both in identifying a number, a range, or a group of component parts (or terms) to form a framework for resolution.

I would say that MP’s are concepts to consider in less than half of the mediations I do, but, when mutually accepted as a concept, they are mutually accepted in number, range or group of component parts an overwhelming majority of the time.