Employment & Labour, Mediation

In mediation, final offers are a road to nowhere

By Todd Humber, AdvocateDaily.com Contributor

The mediation table is already packed with drama — back and forth negotiations, emotion, and trials and tribulations — so the last thing it needs is for one party to table a final offer, says Toronto mediator and employment lawyer Peter Israel.

“We all know there’s no such thing — especially not early on in the process,” he tells AdvocateDaily.com.

Drawing a line in the sand rarely works, and final offers get in the way of the true goal of mediation, which is finding a solution that both parties can live with, says Israel, founding principal of PI Mediation.

The role of a mediator is to bridge the gap if possible, and final offers interfere with that process, he says.

As a mediator, Israel offers a sober impartial view — analyzing the challenges unique to each case.

“I keep saying to the parties that the mediation day really isn’t about justice,” he says. “It’s not even necessarily about fairness. Today is about what is achievable.”

Israel finds a compromise solution in well over 90 per cent of the cases he mediates without one party resorting to a final offer, he says.

One of the keys to success is draining emotion from the room, Israel says. You can acknowledge and sympathize with feelings and emotions, and they may be very valid, he says.

“Unfortunately, neither I nor a court can deal only with your feelings,” Israel says. “This isn’t about vengeance, it’s about law. And the law, in this type of situation, can at best do A-B-C. Don’t be offended, it’s not personal.”

Both parties need to listen carefully to what the mediator is saying — because it’s usually very rational — and the alternative to not coming to an agreement at the table can be very unpalatable, Israel says.

“Be aware of the consequences that come with that decision,” he says. “That can include the court imposing a ruling — which is public — that you’re wrong. In a sense, that is much harder to live with.”

But what happens when, after lengthy discussions, there is no breakthrough, and a final offer feels like the only option?

“In my world, I never suggest that,” Israel says. “At the very end, if we haven’t gotten far enough, I might say, ‘Look, these are your choices: You can walk and submit a final offer, or you can allow me to continue the negotiations, which I’m very happy to do.’”

If the parties are truly steadfast in their positions, he attempts to narrow the delta between the parties to a point that is “livable. That is my final suggestion.”

“And that’s my last shot at it because if that doesn’t work, I’m done,” says Israel. “I don’t go back to the defendant for one cent more, and I don’t come to the plaintiff for one penny less. Only at that stage am I willing to allow a party to table a final offer. If they insist, I still try to argue against it and tell them why it’s not going to be the optimal solution.”

Even when the final offer makes its appearance and is refused, it’s never the end, he says.

“People either will alter their offer, even though it’s a final offer, or they leave it on the basis that they’ll call me if they have a change of heart,” says Israel.

It’s not uncommon for a mediation to completely fall apart, with both sides at an impasse, only to have it settle a couple of weeks later when cooler heads prevail, he says.

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