A mediator’s proposal is a written statement that sets forth crucial points to convince both sides to settle their civil case. The proposal is sent to all parties with a deadline for acceptance or rejection. If there is any rejection of the proposal, then there is no agreement.
The Process of a Mediator’s Proposal
After both sides have been through mediation and a settlement cannot be reached, then a mediator will write out a proposal to settle. A mediator’s proposal is usually done through email and can be simple or extremely detailed. For example, the proposal can list all of the risks a defendant faces and detail how those risks would play out in trial. Or, a proposal can simply state a dollar amount with a check box labeled “Accepted,” and another box labeled “Rejected.”
The proposal is usually presented to all the parties in a “double-blind” format, meaning all settlement amounts are confidential. Parties are normally allowed a reasonable amount of time to consider the proposal and make a decision.
When are Mediator’s Proposals Made?
A mediator’s proposal is not necessary until two parties are no longer negotiating. A proper proposal usually occurs when both parties are within 20% of one another, but the proposed amount can be assigned at the mediator’s discretion. A mediator’s proposal can be made when both sides are far apart. This is because both sides will be accumulating attorney’s fees and court costs if they choose not to settle. Additionally, some mediators may not make a mediator’s proposal without authorization of the attorneys. For that reason, it is important to have a Personal Injury Attorney with mediation experience to ensure you reach a fair settlement.
Are Mediator’s Proposals Binding Contracts?
A written acceptance of a mediator’s settlement proposal is not necessarily binding. However, under California Code of Civil Procedure 664.6, if all parties signed an agreement outside of the presence of the court or orally before the court, the settlement may enter judgment pursuant to the terms of the settlement. The court can retain jurisdiction over the parties and enforce the settlement in its full terms. This goes for mediator’s proposals if it is signed by any of the following parties:
- The plaintiff/defendant
- An attorney
- An insurance agent
Pros and Cons of a Mediator’s Proposal
The benefit of a mediator’s proposal is that the mediator can suggest a number that neither party would be comfortable offering. The mediator can also take a harsh and realistic approach as to the consequences of not settling. A mediator is typically a retired judge with decades of court room experience, so their opinion is highly regarded. Moreover, a mediator’s proposal comes a day or two after a failed mediation, giving both sides plenty of time to cool off and make more reasonable decisions.
The downside of a mediator’s proposal is that a value will be assigned to the case, which may not be agreeable to one side or both sides. This can damage expectations and tarnish the relationship between counsel and the mediator, thus affecting future work. So, the mediator is inclined to propose a fair amount to both parties.
Contact a California Personal Injury Attorney
At Maison Law, we know the best way for personal injury victims to protect themselves from becoming a victim a second time is to arm themselves with an experienced Personal Injury Attorney. If you’re ready to take the necessary steps toward financial recovery after an accident, contact us today for a no-cost, no-obligation consultation.
