Mediator’s Recommendations — Revisited

What they are, when they work, and when you should (and shouldn’t) ask for one

At some point in nearly every mediation—often more than once—the parties hit a wall.

More often than not, it happens when each side reaches the edge of its “acceptable” range—the number they came prepared to live with. Movement slows. The conversation tightens. And too many mediations end right there.

The problem is that the Zone of Possible Agreement—the ZOPA—is often just beyond that point. But getting there requires something more than another incremental move.

That’s where the conversation often turns—sometimes quietly, sometimes directly—to a mediator’s recommendation.

Over the years, I’ve found that lawyers tend to fall into two camps on this issue: those who want one early and often, and those who are wary of them altogether. The reality is that a mediator’s recommendation can be a highly effective tool—but only if everyone understands what it is, what it isn’t, and what they intend to do with it.

What You’re Really Asking For

When you ask a mediator for a recommendation or a mediator suggests making one, you’re not going to get a ruling. You’re not asking the mediator to “call balls and strikes.” And you’re not getting a pure valuation of your case.

At least, you shouldn’t be.

When I make a recommendation, I am not telling the parties what the case is worth or who should win. I am identifying a number—or sometimes a structure—where I believe agreement is possible, even if neither side is willing to suggest it themselves.

That distinction matters. The effectiveness of the recommendation depends on it.

Why They Work (When They Do)

A mediator’s recommendation works because it changes the dynamic in a way the parties cannot do on their own.

It allows both sides to move without appearing to concede. It gives lawyers something they can take back to clients, carriers, boards, or decision-makers without owning the number themselves. And it creates a moment where “yes” can happen simultaneously, without either side having to go first.

In more complex matters—construction disputes with multiple players, bankruptcy negotiations with competing priorities, environmental cases involving allocation and uncertainty, or layered commercial litigation—that dynamic can be critical. Sometimes the barrier isn’t the number. It’s the inability to be the one who moves to it.

How I Typically Use Them

I do not treat mediator’s recommendations as a default move when things slow down. In most cases, I won’t suggest one unless the parties raise it or we reach a point where negotiation has genuinely stalled.

Timing matters.

If a recommendation comes too early, it can short-circuit productive negotiation or be perceived as the mediator stepping out of role. But when the parties have done the work—exchanged information, tested assumptions, and exhausted reasonable movement—it can be the right tool at the right moment.

And when I do make one, I am careful about how it is framed and delivered:

• It is presented as a possible resolution point, not an evaluation

• It is shared confidentially and concurrently

• The response is yes or no, without conditions

• And unless both sides say yes, no one knows how the other responded

Even when it doesn’t result in immediate agreement, it often resets expectations and reopens the negotiation in a productive way.

A Practical Question for Lawyers

Before you ask for a mediator’s recommendation or accept one, it’s worth pausing on a simple question:

What am I going to do with it?

If your client (or carrier, or decision-maker) is not prepared to seriously consider a “yes” at the right number, a recommendation may not help—and can sometimes complicate the process.

Similarly, if you already know that your side will reject anything outside a narrow band, it may be more productive to continue negotiating directly or explore other tools first.

On the other hand, if you are looking for a way to test the outer edge of resolution, create movement without posturing, or give your client a credible basis to make a difficult decision, a recommendation can be exactly what you need.

Don’t Be Afraid of It—But Be Intentional

There’s a lingering concern among some lawyers that a mediator’s recommendation signals weakness in the case or loss of control over the process. In my experience, that concern is misplaced.

Used thoughtfully, a recommendation is simply another tool—one that can be particularly effective in the most difficult cases.

The key is to be intentional about it.

Know why you’re asking for it. Be prepared for what it might be. And think in advance about how you will advise your client if the answer is “yes.”

Most cases don’t settle because someone “wins” the negotiation. They settle because both sides find a way to say yes at the same time.

A mediator’s recommendation, used at the right moment and for the right reasons, can make that possible.