In defense of mediator's proposals: Clarifying ABA Opinion 518

The mediator's proposal is a time-honored tool that mediators sometimes use to help parties find settlement terms that both sides can agree on. A recent article in the Daily Journal (Jeff Kichaven, "Mediation after ABA Opinion 518:  What are a lawyer's responsibilities?" Dec. 3, 2025) argued that ABA Formal Opinion 518 (Oct. 15, 2025) narrows how a mediator's proposal may ethically be used. In fact, neither that opinion nor the other legal bases offered support the conclusions the article reaches. Neither mediators nor lawyers representing clients in mediations should labor under the misconceptions the article may create.

The mediator's proposal

Mediators' proposals come in many flavors, but a common one looks like this. After the parties appear to reach impasse, or seek a way to speed up a process that has been inching along, the mediator (with the parties' consent) proposes to both sides a number somewhere between the last bid and ask that might resolve the case. Each side is then asked to consider the proposed number and report back confidentially to the mediator alone either "yes we accept" or "no we reject." If both sides accept, the mediator announces that the parties have reached a settlement at the proposed number. If one or both rejects, the mediator announces only that the parties did not accept the mediator's proposal, and the parties are left at their prior negotiating positions. This way, if the parties had different answers, the rejecting party does not know that the other side was willing to accept, and the accepting party retains its prior negotiating position. This "double-blind" feature permits the parties to show privately a willingness to compromise without being "punished" for doing so if the other side balks.

In my experience as a mediator, and during my prior time as a lawyer representing clients in mediations, the mediator's proposal has always been understood to represent only the mediator's best effort to find a number that is most likely to be accepted by both sides. Mediator's proposals are not intended to express the mediator's views about whether accepting a settlement at that number is advisable for a party or in the party's best interests. Advising on those matters is the role of each party's own counsel.

Indeed, the mediator's proposal process respects that role. The parties do not respond whether they accept or reject the proposed number until after their counsel has advised them whether it serves their best interests--and no settlement results unless both sides agree. In other words, the mediator's proposal advises the parties what outcome may be possible to obtain in the negotiation at that time, but the parties' counsel advise whether the clients are better off accepting that proposal or continuing to litigate. The roles of the mediator and the lawyers are separate and distinct.

ABA Opinion 518

ABA Opinion 518 makes two main points. First, it notes the requirements of Model Rule 2.4(b) that a neutral should explain to unrepresented parties (or others the neutral knows or reasonably should know do not understand the neutral's role) that he or she is not representing them as a lawyer represents a client. The neutral also should avoiding communicating "in a manner that might be taken as rendering legal advice" or suggesting that the neutral's role "is to protect or advance a party's legal interests or to help the party to attain a particular desired result."

Second, the opinion notes that Model Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, also applies to a lawyer who acts as a neutral, not just one who represents a client. It then elaborates further on how that rule applies to the conduct of a neutral.  

Notably, Opinion 518 does not mention or discuss mediators' proposals at all. The conclusions the article reaches derive in large part from the opinion's statement regarding Model Rule 2.4(b) that a mediator should not say "that a proposed settlement is in a party's best interest." 

A mediator's proposal does not express or imply a best-interest judgment

The article asserts that a mediator's proposal shows that the mediator must believe the proposal is "'equally good for both sides.'" (Emphasis added.) To believe that, the "mediator must first believe the proposal is 'good' for each side.'" The article then argues: "If the mediator believes the number is the best a party can get in the negotiation, and better than the alternative of going to trial--in other words, 'good'--that is a best-interest judgment" that a mediator is forbidden to make. (Emphasis added.)

This mischaracterizes what a mediator's proposal means. A mediator's proposal does not reflect the mediator's judgment that the proposal is "equally good for both sides." Nor does it reflect that a settlement at the proposed number is "better than the alternative of going to trial." A mediator's proposal reflects only what number seems most likely to gain the assent of both sides. How "good" that proposed settlement is for a party, and whether a settlement at that number is better than going to trial, is left for the parties to decide, advised by their respective counsel.

Now, of course, if there are mediators out there who pressure parties to accept a proposal--by advising them that the number proposed is better than the parties will obtain at trial, is in their best interests, or something similar--then, yes, the mediators would be straying beyond the proper role of a neutral. Shame on them if they do so. But to argue that a mediator's proposal necessarily implies such statements does a gross disservice to a tool that many mediators have wisely and properly used for years--and to the parties who hire them to help facilitate a settlement that ultimately may not be achieved without something like a mediator's proposal.

The mediator is not bound to the midpoint

The article argues that "[t]he only mediator's proposal that is theoretically neutral is the midpoint between the last offer and last demand." As a result, it claims, "[o]nce a mediator chooses a non-midpoint number, neutrality is gone." This is misguided. Mediators are always counseling parties that midpoints are not controlling. If a plaintiff says it will move down to 30 if the defendant moves up to 10, that doesn't mean the plaintiff will settle for 20. Nor does it mean the defendant will settle for 20 if it agrees to the bracket. Of course, the parties will frequently consult the midpoint of a bracket to see what it may signal, and those signals may help move the mediation along, but there is nothing magic about the midpoint.

For example, when the parties are far apart and making stingy moves, a mediator may suggest that one party consider making a larger move--in the hope it may provoke a larger move by the counter-party. Although the party considering such move may not like the midpoint the more aggressive number suggests, mediators often advise that the party can always slow down its future moves as the parties get closer. In other words, a larger move does not necessarily mean that a party will settle at the midpoint.

Indeed, the respective rates of change between the parties' demands and offers may well suggest a settlement at something other than the midpoint. Suppose the plaintiff has moved down to 45 in three increments of 10 (75 to 65, 65 to 55, and 55 to 45), and the defendant has moved up to 30 in three increments of 5 (15 to 20, 20 to 25, and 25 to 30). The midpoint between the last demand of 45 and the last offer of 30 is 37.5. But the recent movement of the parties suggests they may have been pointing instead to 35--i.e., if plaintiff were again to come down 10 and defendant were again to move up 5. Of course, there may be valid reasons why either number (or some other) might be the right one to propose, but the mediator has by no means lost "neutrality" if he or she proposes a settlement at the non-midpoint figure of 35 as the one most likely to settle the case.

No improper delegation of a lawyer's duties

 Straying beyond anything stated or suggested in Opinion 518, the article then argues that, when making a mediator's proposal, the mediator has been improperly "delegated" the lawyers' own "responsibility to determine the number at which the case should settle." It claims this somehow violates Model Rule 5.3, which requires lawyers to ensure that the other lawyers and the nonlawyers they supervise conform their conduct with professional obligations. But nothing in a mediator's proposal "determines" the settlement number; it is (by definition) a proposal and nothing more. The lawyers are the ones who advise the clients whether the proposal is in the clients' best interests, and only if both sides accept the proposal after receiving this advice is the settlement number "determine[d]."

Vetting a mediator's proposal

The article concludes that the ethics rules do leave available one form of the mediator's proposal, which it calls a "vetted" one. Such a proposal, the article says, suggests a number the mediator has cleared with the lawyers for each side in advance as one that they would recommend to their clients. The article contrasts this with what it calls an "unvetted, pulled-from-the-ear number" or a "pulled-from-the ear, non-midpoint proposal," which it says (for the reasons claimed above) is unethical.

That a mediator should conduct reconnaissance beforehand on the parties' willingness to accept a number being considered for a mediator's proposal seems obvious, but this is primarily because it would be ineffective and unwise to do otherwise. If the mediator doesn't know in advance that the parties would at least seriously consider a number being proposed (or a range that included the number), then such a proposal is premature and likely to be ineffective.

If indeed there are mediators who propose numbers that are completely "unvetted" and "pulled from the ear"--and this is not simply a strawman the article uses to make a point--then they may be foolish. But for the reasons discussed above, they would not violate the duty of neutrality or assume the non-neutral role of a lawyer by doing so.

What's more, the article's reasoning proves too much. If a mediator's proposal necessarily implied advice by the mediator that the proposed number was in the parties' best interest (which, as shown above, it does not), why would that imagined problem be solved by getting the parties' lawyers to indicate beforehand that they would recommend it? Why wouldn't a neutral mediator still be forbidden from giving the parties this implicit advice by advancing a mediator's proposal? In short, the argument if accepted would invalidate all mediator's proposals, not simply the uninformed earwax ones the article imagines.

Conclusion

I spent several years as a member (and one year as chair) of the Los Angeles County Bar Association committee that writes ethics opinions. Were I now a member of the ABA committee that does so, I would find unpersuasive the arguments the article advances for why a mediator's proposal violates ethical standards except in the circumstances suggested. Meanwhile, were the article's conclusions to gain traction or acceptance among mediators or lawyers, they would unduly constrain a tool that many mediators have used with great success--and one that sometimes is the last hope for saving a negotiation that otherwise is destined to crater. Of course, mediators should not stray beyond the normal and well-understood purpose of a mediator's proposal by making statements about whether the number selected will serve the client's overall interests or is better than the litigation alternative. Lawyers should also be sure their clients understand what a mediator's proposal does and does not say. But when used in the traditional way, the mediator's proposal is alive and well, and nothing in Opinion 518 suggests that it is not.

--Mark B. Helm

Mediator and arbitrator at Phillips ADR and a member of the National Academy of Distinguished Neutrals. Helm is a former chair of the Los Angeles County Bar Association's Committee on Professional Responsibility and Ethics and a former co-managing partner at Munger, Tolles & Olson LLP. He can be reached at mhelm@phillipsadr.com.