The mediator's compromise is generally a final attempt by the mediator to try and settle the case when an impasse still remains and the mediator has nothing left in his or her arsenal of tricks. What happens is that the mediator picks his or her optimal settlement number and communicates it to both sides privately. If one side accepts, they learn if the other side accepted or rejected. However, if a party rejects, they never learn whether the other side accepted or rejected. A good mediator will use the mediator's compromise as a final tool only when he or she genuinely believes it may be an effective tool to settle the case. Others, however, use it in desperation when they see the settlement prospects going south as a last ditch effort to try to make something happen that simply is not meant to happen at that time just to be able to say "I settled another case." What mediators need to know, however, is that good lawyers can always tell the difference. Even when employed by the good mediator, however, it has been my experience that the mediator's compromise generally does not effectuate a settlement. In fact, in all of the mediations in which I have been involved, and I am thinking hard, I cannot recall one where a settlement resulted from a mediator's compromise. So,to put it in baseball terminology, I am not a fan of the mediator's compromise.
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