Mediation Maven: October 2026 (Double Header) Whose Settlement Is It, Anyway? My Complicated Relationship with Mediator's Proposals
Recently, I have noticed a change in how some of my mediations end. More and more often, sometime in the late afternoon, one of the lawyers pulls me aside and asks whether I would be willing to make a mediator's proposal. Sometimes the request comes from both sides. Occasionally it comes before lunch, before the parties have done much negotiating at all. And, I have even been asked about them during my sessions with counsel pre-mediation. I understand the appeal, and I have made proposals myself, but I want to share my mixed feelings about them.
Part of my hesitation goes back to what I tell the parties at the start of every mediation. Because I (usually) go straight to private caucus, I give some version of the same speech in each room before we talk about the case. I explain that I am not a judge or an arbitrator and that I will not be deciding anything. The case belongs to them, and so does any settlement that comes out of the day. They know things about their dispute, their tolerance for risk, and their own lives and businesses that I will never know, no matter how carefully I read the materials. My job is to help the parties make the best decision they can, with good information, about whether to settle and on what terms. I sincerely mean that, and I hope most parties find it reassuring.
Why I Push Back
A mediator's proposal sits uneasily with that speech. When I make one, I am no longer helping the parties find their own number. I am handing them mine. Self-determination is the foundation of mediation in Texas. See Tex. Civ. Prac. & Rem. Code § 154.023(b). A mediator's proposal is not an imposition in the formal sense, because either side is free to reject it. In practice, though, a number that comes from the neutral can carry a weight that a number from the other side does not, and I try to be careful about how I use that weight.
There are practical costs as well. Once lawyers know a mediator is willing to make a proposal, the negotiation can change shape. Parties start positioning for the proposal instead of negotiating with each other, holding back moves they would otherwise make because they expect the mediator to split the difference at the end of the day. And even though I disclose to each side that a proposal is simply what I believe both parties will accept and not what I believe the case is worth, a proposal may tell each side something about how I see the case, and the side that rejects it may conclude, fairly or not, that I was never really neutral. And when a client accepts a number because the mediator said so, I worry that the client has not fully made the decision. That matters in employment cases in particular, where the plaintiff has often lived with the dispute for years and needs to feel that the resolution was his or her own choice.
When a Proposal is the Right Tool
All of that said, I do not refuse to make proposals, and there are days when one is exactly what the parties need. The clearest example is a true impasse late in the day, after both sides have negotiated in good faith and narrowed the gap considerably, when each side is privately signaling that it could live with a number it cannot be the one to put on the table. Plaintiffs frequently feel that dropping below a certain figure would be a betrayal of everything they have been through. Employers worry about precedent and about what one more move will signal to the other side. A proposal lets each of them say yes to a number without having to offer it first, and without ever learning whether the other side said no.
Proposals can also help when the person with settlement authority is not in the room or needs some form of cover. An adjuster who has to justify a number to a claims committee, a general counsel reporting to a board, or a public entity that answers to a governing body may find it easier to approve a figure recommended by a neutral than one that looks like a concession. Sometimes the need comes from the lawyer, who has already advised the client about the risks of trial and would benefit from an independent voice reinforcing that advice. In each of these situations, the proposal does not take the decision away from the parties; it gives them a way to make a decision they were already close to making.
How I Handle Proposals
When I make a proposal, I try to keep it consistent with the vision I described at the start of the day. I generally do so only when both sides ask for it or agree to it, and only after the parties have done the hard work of negotiating with each other. I make clear that the number is not my valuation of the case or a prediction of what a jury would do. It is my best judgement of where this particular case can settle, based on everything I have heard in both rooms. Both sides receive the identical proposal at the same time, and each tells me privately, by a set deadline whether it accepts. Each party makes its own call, which is exactly where I told them at the start of the day that the decision would stay.
Join Me at TMCA This Month
Mediator's proposals raise real questions about self-determination and impartiality, and they are only one of the ethical gray areas mediators face each week. I will be digging into these issues as a speaker on the mediator ethics panel at the Texas Mediator Credentialing Association conference on October 24, 2026 at South Texas College of Law. The panel is run as Family Feud-style game for much of the session, so expect it to be more fun than the typical ethics hour, while still giving you practical guidance on how the TMCA standards apply to situations you will recognize from your own practice. If you mediate in Texas or represent clients in mediation, I hope you will join us. Registration information is available here. Please come find me afterward, and let me know what you think of this blog post. I am genuinely interested in hearing how others handle proposals.
