As sophisticated litigants are increasingly turning to alternative dispute resolution (ADR) to resolve their legal disputes, California legal practitioners are seeing more variations on traditional mediation. This article considers mediator’s proposals in the post-Bowers context and what counsel can do to effectively navigate in a milieu where the lines among mediation, hybrid “med-arb,” and arbitration are sometimes blurred.
In “traditional” mediation, the mediator is a neutral and serves to facilitate meaningful settlement negotiations but does not “take sides.” In a gradual departure from traditional mediation, one emerging trend in mediation is the increased frequency of requests for mediator’s proposals. For some mediators, a mediator’s proposal is an important mediator’s tool for breaking an impasse, provided that the parties agree to the basic ground rules. In its extreme form, the “proposal” could be a binding mediator’s award. For other ADR professionals, the trend toward mediator’s proposals is met with uneasiness because the tactic forever changes the dynamics of traditional mediation. Under conventional mediation principles, “binding mediation” is either conceptually dissonant or something to be eschewed because it creates a situation in which the mediator becomes the decision maker.
This year, California jurisprudence included a court of appeal decision affirming a trial court’s entry of judgment based on a “binding mediation award.” Bowers, et al. v. Raymond J. Lucia Cos., Inc., 206 Cal. App. 4th 724 (2012). In Bowers, the Fourth District Court of Appeal upheld a “binding mediation award” by characterizing the award as an enforcement of a settlement agreement under the Code of Civil Procedure (CCP) section 664.6. The Bowers parties agreed to enter into mediation proceedings with the mediator empowered to enter a binding award in the midst of pending arbitration proceedings. Consent to binding mediation by the Bowers parties was memorialized on the record before the arbitral panel, and followed by a written settlement agreement confirming the essential terms of the binding mediation. 206 Cal. App. 4th at 729-30, 733. Based on these facts, the Bowers court distinguished Lindsay v. Lewandowski, a 2006 decision, in which the court of appeal (also the Fourth District) refused to enforce an agreement requiring “binding mediation” because a material term – namely, the procedure the parties intended if the mediation failed – was not reasonably certain to be enforceable.
Although Bowers and Lewandowski address fact patterns in the context of “binding mediation,” both cases are generally instructive to practitioners’ consideration of mediators’ proposals outside of the context of binding mediation. Given the myriad of forms that mediators’ proposals can take – most of which contain certain “blind” components – practitioners, as the parties’ advocates, should adopt certain practices to enhance transparency and to position the mediation process to best suit the needs of their clients. It is important to be proactive in shaping the mediation process, which should include anticipating a mediator’s proposal. Here are some approaches to preparing for, and requesting/responding to, mediator’s proposals:
1. Be proactive in shaping the mediation process – including due diligence regarding your mediator’s views on mediator’s proposals. Mediation, by its nature, is considered voluntary (even in court-ordered mediations) because no one can force a party to settle. In most cases, while the parties may initially stipulate to mediation, the resulting judicial order to mediation may have the effect on the parties of treating the process as a compulsory rather than a voluntary exercise. Avoid passivity in the process: ask your mediator how (s)he generally approaches mediator’s proposals. A prepared advocate can influence and demystify how the specific mediator’s proposal process works.
2. Bring a proposed form of settlement agreement. If you are prepared for mediation, you should have a form of settlement agreement with the anticipated key elements or material terms. Parties often ask for something other than monetary damages in mediation that they would not be entitled to receive even if they prevail in a trial setting. Anticipate non-monetary components to a settlement and include them in your form of settlement agreement. Your form of proposed settlement may help shape the form of the mediator’s proposal (and increase the likelihood that it will be enforceable under CCP section 664.6).
3. Develop a mediator’s proposal strategy. Before mediation commences, decide with your client whether your client would request or agree to receive a mediator’s proposal if mediation results in an impasse. Dynamics in most mediations are fluid, and depending on you and your client’s comfort level with the mediator, your views on whether a mediator’s proposal is feasible or helpful may change during the mediation; accordingly, build flexibility in your impasse/endgame strategy.
Because forms of mediator’s proposals are so varied, consider what type of mediator’s proposal would be most effective for the respective parties. Most likely, your mediator will be sufficiently skilled in preparing proposals that take into account the plaintiff’s articulated “rock bottom” demand and the defendant’s “best” offer. If the parties are extremely far apart, consider bracketing the mediator’s proposal, which includes a range that encourages the parties to continue settlement discussions.
4. Leverage gains made in mediation with a mediator’s proposal. As anyone who has ever participated in any form of ADR knows, there is an inherent value to getting the parties to articulate some settlement figures – however “pie in the sky” or “unrealistic lowball” – because those numbers continue to frame settlement discussions for the remainder of the litigation. The same phenomenon applies to mediators’ proposals, which has the potential to meaningfully mark – in indelible ink – the gains made during the parties’ settlement discussions. Sometimes the deal cannot be done in the time limits initially set by the parties’ mediation arrangement. Set time limits for the parties’ consideration of the mediator’s proposal. Most mediators’ proposals set a relatively short time frame, usually a week, for the acceptance of a mediator’s proposal. Mediators care about their success rates. If you sense that a deal might be possible with additional time, ask the mediator to donate some additional time to the cause to bridge the gap and reach a settlement.
About the Author
Constance J. Yu is a partner of Sideman & Bancroft LLP in San Francisco. Her primary practice areas are civil litigation and business crimes defense. Ms. Yu advises clients in criminal investigations involving corporations, former government officials and private individuals in financial and other business disputes. Ms. Yu also serves as a mediator on the Northern District of California panel of neutrals. Sideman & Bancroft LLP is a certified Women Owned Business Enterprise. The firm is the largest women-owned provider of legal services in the Western United States, certified through National Association of Minority and Women Owned Law Firm (NAMWOLF) and Women’s Business Enterprise National Council (WBENC).
 See e.g., Dwight Golann, Mediating Legal Disputes – Effective Strategies for Neutrals and Advocates, (ABA Publ. 2009), Ch. 9: “Resolving Impasse and Closure,” pp. 189-191.
 See e.g., Steven H. Kruis, “Binding Mediation: An Oxymoron?” in Los Angeles Daily Journal, June 14, 2012; Damon Thayer and MacKenzie L. Smith, “Binding Mediation – A Trap for the Unwary” in The Recorder, July 30, 2012 (Vol. 136, No. 31).
 Lindsay v. Lewandowski, 139 Cal. App. 4th 1618 (2006).