The most interesting thing about Steve's presentation was that the vast majority of his cases settle based on a mediator's proposal, meaning a settlement proposed by the mediator that the parties can either accept or reject. Although a mediator's proposal often represents a final attempt to bridge the gap between the parties, Steve is known for making mediator's proposals, and now even has attorneys asking to skip the niceties and go straight to the mediator's proposal.
Steve has developed a unique skill set (and reputation) in settling a particular kind of extremely difficult case. In the type of cases Steve handles, a mediator's proposal is necessary just to cut through the otherwise endless posturing and "tit for tat" moves that often characterize mediation and that would simply be untenable among more than 20 parties. Also, based on Steve's presentation, it appears that his cases typically involve "getting to a number." This means that Steve must convince the defendants to come up with a pot of money that the plaintiffs will accept, as well as agreement among the defendants as to how much each will pay.
In other types of cases, the mediator's proposal probably should be reserved as a last effort to bridge the gap between the parties. "Cutting to the chase" may be attractive to some, but for most parties, much of the value of mediation lies in providing an opportunity to tell their side of the story. As I've previously written, in these times in which few parties can afford to try civil cases (and many judges try to avoid civil trials), mediation provides the best available substitute for a day in court.
Further, business cases often involve complicated and sometimes on-going relationships. It would be virtually impossible in such cases for a mediator to move immediately to a mediator's proposal suggesting how the parties should continue to do business or unwind their relationship.
That said, the mediator's proposal can be a valuable tool. In most cases, once the issues are aired out, the range of reasonable settlements is pretty clear. If the parties negotiate into that range (what I call the "zone"), the mediator can pretty much sit back and let the negotiations play out to resolution.
In other cases, the range may be crystal clear, but the parties just cannot get there by themselves. Many times, the lawyers for the parties know exactly what the range is, but the clients just will not move into it. In these circumstances, a mediator's proposal may be the only way to close the gap.
A mediator's proposal is, however, a somewhat risky strategy for the mediator. The only certainty is that it will put an end to the mediation, either with both parties accepting the proposal or one or both sides walking away. For this reason, I prefer to get the parties' permission before offering a mediator's proposal.
From the standpoint of mediation theory, note that Steve's approach -- or any approach in which a mediator's proposal is offered -- is the antithesis of "facilitative mediation." Facilitative mediation is a process where the mediator offers no opinions or evaluation, but simply serves as a go between (some would say a "note carrier") for the parties.
In this regard, another Texan, John Nance Garner, who served as Franklin Roosevelt's Vice President from 1933 to 1941, famously remarked that the office he held was "not worth a pitcher of warm spit." The view here is that the same might be said for facilitative mediation.