Mediator's proposals - done right

Does ABA Formal Ethics Opinion 518 mean mediators can no longer make mediator's proposals?

No. I am not against mediator's proposals. In fact, I use them.

Traditionally, mediated cases tend to settle in one of two ways:

At one end of the spectrum, the evaluative mediator selects a number based on what he or she has seen and heard and drives the parties toward that number, often in the form of a mediator's proposal.

At the other end, the facilitative mediator provides no substantive input at all, leaving the parties to generate settlement terms themselves.

There is a third way--a different kind of partnership between mediator and counsel, in which each person plays a vital, active role. This is what I call the vetted mediator's proposal.

In this third paradigm, mediators create the crucible in which lawyers fight for their clients' interests. They negotiate. They test limits. They bluff when they can and compromise when they must.

The mediator stewards the negotiation and ensures it reaches its logical end--a number each lawyer can recommend. That logical end can then be put into the form of a mediator's proposal, one which validates, and does not replace, the lawyers' independent judgment about the best available deal.

The lawyers then put the weight of the mediator's authority behind that mediator's proposal to get their clients to go the extra mile on the money and get all the other benefits settlement provides--finality, the elimination of the risk of extreme outcomes, psychological relief and the ability to move on.

This paradigm empowers lawyers to fulfill their ethical duties--to provide competent representation and independent judgment as required by ABA Model Rules of Professional Conduct 1.1 and 2.1. It also empowers mediators to fulfill their own professional obligations--to remain neutral and maximize the self‑determination of the parties we serve.

Late last year, I set forth the groundwork for this approach in "Mediation after ABA Opinion 518:  What are a lawyer's responsibilities?" (Daily Journal, Dec. 3, 2025).

In a recent Daily Journal article, "In Defense of Mediator's Proposals: Clarifying ABA Opinion 518," (Daily Journal, Feb. 5, 2026), Mark Helm addresses the issue from a different perspective. Helm offers a thoughtful defense of the traditional mediator's proposal--a number selected by the mediator and presented to the parties as a take-it-or-leave-it settlement option. He suggests lawyers can still exercise independent professional judgment when responding to such proposals.

Helm writes that a mediator's proposal merely identifies "what outcome may be possible to obtain in the negotiation at that time."

The difficulty is that this defense rests on an assumption about mediator's proposals that does not reflect mediation practice as classically taught or commonly conducted. It assumes that the mediator's number represents the best settlement your competent representation and independent judgment could produce.

Better than "no deal" vs. the best terms available

The traditional mediator's proposal asks a narrow question: Is this better than no deal? Although that may settle cases, a proposal that is better than "no deal"--perhaps only by a peppercorn--is not the same as a proposal that represents the best terms available to the client.

This distinction makes all the difference.

Here is what clients want--and are entitled--to know: not simply whether a settlement leaves them better off than "no deal," but whether the settlement is the best outcome their lawyer can deliver for them. As explained below, Model Rules 1.1 and 2.1 require lawyers to work their hardest and exercise independent judgment to provide just that. The traditional mediator's proposal makes competent representation impossible. The vetted mediator's proposal makes it inevitable.

It is simply not appropriate for the mediator to announce: "You are at 60, the other side is at 70, the mediator's proposal is 65." No matter how sage or thoughtful the mediator may be, a mediator's proposal that the lawyers have not tested and accepted as recommendable substitutes the mediator's judgment for the lawyer's work.

Viewed this way, the traditional mediator's proposal is a species of adjudication--the mediator selecting a number between the last offer and the last demand--but without giving the lawyers notice or an opportunity to be heard. The parties remain free to accept or reject the number, of course, but the critical decision--the selection of the number itself--has already been made without the adversarial testing competent representation and independent judgment require.

The practical risks of the traditional mediator's proposal

The traditional mediator's proposal also creates practical risks. A mediator's proposal is not an interim step. It is universally taught as a closing technique, the last chance to settle the case.

If one side accepts the proposal and the other rejects, it is almost impossible to get the "yes" side to move further to reward what it sees as the "no" side's intransigence. At that point, the mediation is effectively done.

Opinion 518 and the lawyer's role

These structural problems are not merely matters of negotiation technique. They implicate lawyers' ethical responsibilities.

Under Model Rules 1.1 and 2.1, lawyers must provide competent representation and exercise independent professional judgment when advising clients.

Opinion 518 addresses this issue from the mediator's side of the table. Mediators may evaluate the case--discussing strengths and weaknesses, verdict ranges, even probabilities of success--but they may not tell parties a proposed settlement is in their best interests. That judgment belongs to counsel alone.

Here is an easy way to see the distinction.

Suppose the local news reports a 40% chance of rain tomorrow. You still decide for yourself whether to take an umbrella, based on your tolerance for risk, your plans for the day and other factors that matter to you.

The same principle applies in mediation. A mediator may tell your clients they have a 40% chance of winning. That is evaluation, and it is perfectly proper. But the parties have their individual psychological and financial tolerance for risk, and the constitutional right to a jury trial. It is not the mediator's job to substitute his risk tolerance for theirs, or to presume he knows best regarding when they should forego their constitutional rights. This advice should come only from their own lawyers, the only ones who owe them the undivided duties of competent representation and independent judgment.

The client's two questions

When clients hear a mediator's proposal, they ask two questions that expose the no‑deal/best‑deal issue immediately. The first:

"Is this the best we can do?"

They ask because they are rarely enthusiastic about mediator's proposals. After all, a mediator's proposal asks them to go beyond what they previously believed was the fair settlement value of the case.

A related question exposes the same concern from a different angle:

"Did you negotiate this on my behalf?"

Model Rule 1.1 requires the lawyer to be able to answer confidently: "Yes, I did."

With a traditional mediator's proposal, where the mediator selects the number unilaterally, lawyers cannot take responsibility for that number--and have no way to know whether it represents the best available outcome.

Only the vetted mediator's proposal makes that answer possible.

All of this leads to a simple conclusion.

The traditional mediator's proposal makes competent representation impossible. The vetted mediator's proposal makes it inevitable.

How a vetted mediator's proposal actually works

In practice, it involves two steps.

First, agreement on the tool. When negotiations hit an impasse, but the aroma of settlement is still in the air, either the mediator or a lawyer may suggest a mediator's proposal to seal the deal. Before anything else happens, the mediator should confirm that both sides agree with the concept. No one should be surprised by the sudden appearance of a mediator's proposal.

Second, negotiation of the number. The mediator should then consult with counsel about what the proposal should be. Lawyers sometimes push back at this point.

"But my dear mediator," they say, "isn't it supposed to be your proposal?"

The answer is no--not in any substantive sense.

The mediator's proper role is to make sure the lawyers can recommend the number before the proposal is issued. A mediator's proposal is thus like a question on cross‑examination: you do not ask unless you either know the answer in advance or do not care.

When it comes to mediator's proposals, mediators care. So we want to know.

A simple example shows how this works. Imagine the parties are stuck, with the defendant at 60 and the plaintiff at 70 on a scale of 1 to 100. It is perfectly appropriate for the mediator to say to the lawyers, either separately or together:

"The human mind naturally gravitates toward the midpoint: 65. What do you think of that?"

The negotiation can then continue until the lawyers reach a number they can each responsibly recommend.

Sometimes the ensuing negotiation happens with both lawyers together, and sometimes the mediator shuttles between them--all safely away from clients. Either way, the lawyers push back, challenge assumptions and negotiate toward a number they can responsibly recommend.

If the aroma of settlement is sufficiently sweet, the lawyers will arrive at a number they can recommend. The mediator then capstones the negotiation by putting it into the form of a mediator's proposal. The lawyers next present that number to their clients with the full weight of the mediator's authority behind it.

Once lawyers negotiate the number this way and the mediator formalizes it as a proposal, it is no longer a gamble. It is the final step of a process that has already reached its logical, self-determined end. In my personal experience, it has never failed.

When mediators and lawyers follow this discipline, the mediator's proposal becomes what it should be: a tool that reinforces the lawyer's advice to the client, not a substitute for it. In that partnership, lawyers fulfill their professional duties--and still get cases settled.