Should the mediator propose creative solutions?

January 20, 2023

By Brian Babcock

There is no single simple answer to this FAQ.

Mediation is rightly popular because in most disputes, the best result is one the parties agree to themselves. This applies especially to situations where the objective is about more than “who will pay how much?”

But what happens if you need creative help?

The vogue in mediation these days is to use a mediator strictly as a facilitator between the parties to structure the negotiations and keep them moving forward in an organized and efficient manner. For instance, if there are multiple issues, temporarily parking one issue upon which there is no agreement while other issues are tackled. As more issues are crossed off the list, momentum goes further in favour of achieving settlement and the parties will often then be more inclined to be flexible on the tough issue. Common thinking is that facilitators retain their credibility longer and are more effective. Sometimes, that may be true.

But what if you need uncommon thinking?

Even in those supposedly simple “how much” cases, a deadlock may result that could be sidestepped by using different terms of payment, or by broadening the discussion where there is an underlying issue beyond money.

Who is going to propose creative solutions? Who will probe for those hidden issues?

Where you have a mediator who is both a skilled facilitator and has some subject matter expertise, it would be foolish not to invite the mediator’s opinion on how to break a deadlock. Often the mediator’s impartial viewpoint will give weight to ideas that the parties and their lawyers might reject if coming from their opponents. In those circumstances, having a mediator who sticks strictly to facilitation is not getting the most bang for your buck.

A skillful mediator such as a Weilers LLP mediator may be the person you need to break that deadlock.

There is an intermediate approach. The parties might decide in advance to begin with the mediator acting as facilitator, with the understanding that if invited by the parties, the mediator may not only express opinions, but propose creative solutions.

Why is it useful to have that agreed to up front?

Because if the mediator is aware that they may be called upon to propose solutions, they will be thinking accordingly throughout the process. If they believe that they are strictly a facilitator, their focus will only be upon maintaining the flow of negotiations. A good mediator should be capable of uncommon thinking.

It is possible to begin with a facilitation style mediation and partway through ask the mediator to switch hats without discussing it in advance. That simply is more challenging for the mediator and may not lead to your best results.

At Weilers LLP, our mediators understand how uncommon thinking may create a pathway to creative solutions. Why not let us be your guides to settlements that last?