A Mediator’s Private Whisper Can Break a Million-Dollar Deadlock

There’s a scene that mediators and litigators know well. The conference room is quiet. It’s late in the day. The same offers have been traded without any movement, and nobody wants to take the next step because they don’t see any reason to do so.

Why make a concession if it won’t lead to a deal? The impasse is less about stubbornness and more about calculation as each side waits to see if the other will budge.

When I’m mediating a high-stakes case and negotiations stall, I consider using a mediator’s proposal: a practical, suggested settlement that is privately developed and presented to both parties separately.

Each side tells the mediator confidentially whether they’d like to accept or reject the offer. If both accept, the case is resolved. If either side declines, the process ends, though the parties can continue negotiating later.

This approach isn’t aimed at judging the merits of the case. It’s aimed at finding a number or structure that actually might resolve the dispute.

I’ve used this tool in some highly complex disputes involving multinational corporations, government entities, private equity firms and even widely publicized disputes. Four conditions must be in place before I’ll put a proposal on the table.

A true impasse. The parties must have exhausted all realistic avenues of negotiation. This isn’t just a temporary pause or a small disagreement; there must be a genuine stalemate. All obvious concessions should have been explored, and incremental movement isn’t getting anyone closer to a deal.

For example, each side may have rejected multiple settlement ranges, or negotiations may have stalled for an extended period. If movement is still possible, the mediator’s proposal is premature. But if we’ve reached the point where everyone is staring across the canyon and starting to pack up their laptops, a proposal can break the deadlock because it introduces a fresh, neutral perspective that neither side has fully considered.

Consent. Both sides must explicitly agree to consider a mediator’s proposal before it’s developed. Without consent, the effort is wasted and can even harm negotiations by creating distrust. Consent signals that both parties are serious about finding a resolution, even if they’re currently entrenched.

In practice, I usually confirm privately with counsel and the parties that they’re willing to entertain a confidential suggestion, making clear that the proposal is nonbinding unless both accept. This shared understanding sets the stage for a process that feels safe and constructive.

Practicality. A good proposal isn’t an academic exercise in case valuation. It has to be something the parties can realistically live with. When preparing a proposal, I consider what a court might award, but I also think about business dynamics, the cost of continued litigation, and the mix of personalities and interests in the room.

For example, a Fortune 500 company may accept broader non‑monetary terms to preserve its reputation, whereas a smaller company or individual plaintiff may value certainty and closure more highly.

The resulting proposal should blend legal merit with human and practical considerations, aiming for a solution both sides can accept, even if it isn’t ideal for either. The goal is a solution that can be implemented, rather than an idealized figure that would be rejected outright.

Confidentiality. This is crucial to maintaining trust and candor throughout the process. Each side responds privately with “yes” or “no,” and neither sees the other’s exact response. This ensures that the proposal can be evaluated honestly, without posturing or signaling strategies to the opposing side.

This approach also protects the mediator’s neutrality, because I can communicate the outcome in a way that encourages continued negotiation without escalating tension if one party declines. For example, if one side accepts and the other declines, I can provide feedback and guidance for consideration in the future.

Advocating Settlement

When I put forward a proposal, I’m not taking a position for either side. I’m advocating for the settlement. I’ll sit down with each party and explain why I think it’s an acceptable resolution for both.

Sometimes they disagree with me. But often, hearing a neutral recommend a structure or number can provide that extra push they need to move forward.

This is especially true when the client attending the mediation may need approval from a board, a governmental body, or senior leadership. In those cases, a mediator’s proposal provides a sense of cover, as the client can go back and say, “We didn’t just pull this out of the air. This is what the mediator proposed.” That explanation can be the final factor that secures approval.

Lawyers sometimes confuse mediators’ proposals with other tools. For instance, if the parties are still bargaining, I might point out that the midpoint between their positions hasn’t changed much and ask if they’d consider meeting there. That’s not a mediator’s proposal—that’s just me trying to save time.

The real mistake is when mediators or lawyers treat a proposal like a pure evaluation of the case when it’s a blend between my concept of value and what I believe is achievable. I don’t know what the case is “worth” on the merits—I’m not the judge or jury.

I don’t reach for a mediator’s proposal lightly. It’s always the last resort after every other avenue has failed. But when the conditions are right, it’s one of the most effective tools we have to resolve contentious disputes.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Alan Fine is a Miami-based mediator, arbitrator, private judge and court-appointed receiver in complex commercial matters who previously served as an Eleventh Judicial Circuit of Florida judge.

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