The typical mediation involves five people: the mediator, the two parties and the attorneys for the two parties. (Alternatively, there will be just the parties and the mediator, or perhaps one party will have an attorney and one will not.) If the parties are unable (or unwilling) to meet together, then the mediation will proceed in separate rooms – one party and their attorney in one room, and the other party and their attorney in the other room, with the mediator moving between rooms conducting shuttle diplomacy.

Parties may be unable to meet together because of a history of domestic violence or the existence of a restraining order. If the parties are not otherwise unable to meet together, one or both parties may choose to meet in separate rooms to reduce the tension and avoid a destructive confrontation. (Since mediation is voluntary, so too should the prospect of meeting together in one room be voluntary.)

The session may begin together, and then break out into separate rooms for parts of the session, or possibly for the remainder of the session. The breakout may happen at the request of a party, at the request of an attorney, or at the direction of the mediator. Most often the party or attorney calls for a caucus so that the party and attorney can confer privately. Most often the mediator calls for a caucus because at times more progress can be made using the shuttle diplomacy model.

In addition to the mediator meeting with one party and the party’s attorney, there will sometimes be occasions for the mediator to meet with the attorneys only. Mediators often choose this option in order to determine the most efficient use of time, by addressing with the attorneys what discourse might be helpful in reaching resolution versus other discourse that might simply be a waste of time.

When negotiating a settlement during a mediation, and the time comes to make an offer, many people believe you need to go high (if you are the recipient of the settlement) or to go low (if you are the one making the payment). The logic is that, this way, you are setting things up so that hopefully the other party responds with a counterproposal that is at or around the settlement you are seeking.

Most family law mediations do not play out that way. Certainly not when both parties have agreed to pay half of the mediator’s fees, possibly in addition to their own attorney’s fees, to get to settlement. If they could have settled the matter merely by trading a proposal and a counterproposal, and that is all it takes, one might wonder whether they needed a mediator in the first place.

In many cases, one is well-served to take a different approach. It may be worthwhile to make an offer that is a stretch for you, a proposal that meets, or even slight exceeds, your limit. Because any offer of settlement that you make that is not accepted, is an offer that you are not obligated to follow through on. You only have to follow through on the offer if it is accepted.

If you make a “comfortable” offer, and the other party rejects or counters it, no big surprise. You haven’t learned much from that negotiation. If you make a “stretch” offer, and the other party rejects or counters it, then two important things result. (A) You are not required to follow through on the offered terms (so, in the end, no harm in having made the offer); and (B) You have learned more than you would have by having a comfortable offer rejected.

Having a comfortable offer rejected results in an impasse of sorts. But it might be an impasse avoided by digging a little deeper and stretching the proposal outside your comfort zone. Conversely, having a “stretch” offer rejected is an indication that the impasse is a true sign that the issue cannot be resolved in mediation. If the parties are going to have to incur the cost and the risk of litigating the issue in court, they are both better off with a genuine impasse, rather than an impasse resulting from one or both parties just keeping their heels dug in the sand.

So, the “risk” of making a “stretch” offer is that it is accepted. Then, you are contractually bound to honor the offered terms. That is a “nice problem” to have if it means that the case is settled, and it is unnecessary to litigate the issue in court.

It is important not to make an offer that you are not prepared to follow through on. But it may be equally important not to limit your “best offer” to something that is not a “stretch,” especially one that perhaps factors in the risk and cost of litigation. Because if you stick with the comfortable offer, you may end up at a somewhat unmeaningful impasse.