fter substantial negations by the parties, no settlement has been reached. The mediator in caucus asks the Plaintiff whether she would be willing to accept $97,350.00 from the Defendant if the Defendant was willing to offer that amount. If the Plaintiff says yes, the mediator explains that she will go caucus with the Defendant and ask the Defendant whether it would be willing to offer $97,350.00 if the Plaintiff was willing to accept that amount. The mediator tells the Plaintiff that if the Defendant says yes, then there will be a deal at $97,350.00.

The Plaintiff finds this acceptable so the mediator proceeds to caucus with the Defendant. The Defendant says it would be willing to offer $97,350.00 if the Plaintiff was willing to accept that amount.

The mediator convenes a joint session and announces to both parties that a settlement has been reached at $97,350.00.

The $97,350.00 figure is a number well outside the last positions of both parties and was arrived at by the mediator from her own judgment.

Questions

Is this technique, sometimes referred to as the Mediator's Offer, ethically acceptable? If so, what ethical concerns, if any, should the mediator keep in mind when using it?