April 06, 2021 DISPUTE RESOLUTION

Safe and Impartial Evaluation Can Be Effective in Mediation

Dwight Golann and Marjorie Corman Aaron

For too long there’s been enormous division and vigorous debate in our field about the wisdom, value, and ethics of a mediator providing an evaluation of issues involved in a dispute. We believe that, at least in cases where all parties are represented by lawyers, everyone involved can benefit from a mediator’s evaluation when done well.

Direct evaluation. Our analysis focuses on direct evaluation: a clearly and explicitly communicated analysis or prediction that focuses on legal issues. In our opinion, good evaluation does not include a mediator voicing his personal opinion about what is a “right” or “fair” or “just” outcome in a dispute. Such a view is irrelevant because he will not be the one deciding the case if it is adjudicated. More important, once a mediator suggests to a disputant that a claim or defense is less than “just,” the listener may see him as biased.

Direct evaluation, done well, should be a prediction about someone else’s viewpoint: how a judge, jury, or arbitrator is likely to decide a specific issue or the entire case if it does not settle. The mediator is, in essence, predicting the “weather” in a future courtroom or arbitration. Such predictions are relevant because parties almost always see adjudication as their most likely alternative to settlement.

What are the benefits? A mediator’s explicit evaluation can help parties overcome impasses caused by divergent views of the likely outcome of a single legal issue or the entire case. Evaluation is not magic, however. By the time they start mediation, most disputants have been living with their dispute for months or years and have formed strong viewpoints about it. But even if a mediator’s evaluation doesn’t persuade someone to change her assessment entirely, it can infuse uncertainty or reduce confidence that a future adjudicator will see it her way. Sometimes a party recognizes the flaws in her case but hopes to hide them. A mediator’s assessment warns her that those flaws can still be seen.

An evaluation can also influence the views of individual parties. Lawyers often admit that their efforts to convey a realistic assessment to a client have fallen on deaf ears. When the mediator’s evaluation matches the lawyer’s, a client may finally see the handwriting on the wall. If a lawyer had avoided raising doubts for fear of being perceived as insufficiently zealous, he might use a mediator’s evaluation as “cover” to introduce uncomfortable topics. A nonbinding opinion from a respected person who has listened carefully to arguments can also give a litigant the feeling of a “day in court.”

We don’t believe that offering an evaluation reduces a party’s self-determination; if anything, we think getting new information increases a person’s ability to make good decisions.

What about risks? The most obvious risk is that a disputant receiving an unfavorable evaluation will perceive the mediator as aligned with the other side, no longer neutral, and may withhold information and mistrust the mediator from that point on. The “medication” may have been successful in that the neutral’s evaluation was thoughtful and thorough, but the mediation process is now on life support. Evaluative comments must be offered in ways that minimize the risk of losing the perception that the mediator is impartial.

Another risk is that a mediator’s prediction will be wrong. Research suggests that non-partisan evaluations are less subject to cognitive distortion and thus more accurate, but this doesn’t mean that all mediator forecasts are correct. No mediator should think her evaluation is the only reasonable one.

Evaluation can also be dangerous if the disputant takes it as a signal that he cannot achieve his goals in a negotiation. This could trigger loss aversion, one of the strongest influences on human decision-making. Disputants do not always react to mediators’ evaluations with respectful appreciation; often, they express denial, even anger. Having put forward a thoughtful forecast, the mediator must guard against the tendency to react defensively to criticism of her work, which would put her in opposition to the parties or lawyers.

A final risk is that mediators will treat evaluation as an end rather than what it should be: a useful but limited tool to overcome specific obstacles. Even the best evaluation, in other words, should not conclude or unduly narrow the process. It can help get a settlement process moving when it is stalled, but it should not be used to steer the negotiation toward any particular outcome.

Implicit or “leaky” evaluation. When parties have divergent views of the merits and less intrusive measures are insufficient, advocates of facilitative mediation recommend that mediators undertake reality-testing. This is intended to encourage disputants to consider their own views more carefully, not communicate the mediator’s perspective, but we find it often does not work that way. A mediator may pose questions in a scrupulously neutral manner. However, tough litigators typically respond with highly optimistic assessments. Often, lawyers remain obdurate—to maintain a positional strategy, to please clients, or because they passionately believe in the strength of their case.

At this point, training programs often suggest that mediators move to more pointed reality-testing. But it’s difficult to pose questions that are both non-evaluative and strong enough to shake the views of a stubborn litigant.

A facilitative reality-tester dealing with a stubbornly unrealistic disputant might say something like, “I’m having trouble understanding your take on the Smith case. . . . Can we go over it again to be sure I understand well enough to convey your interpretation to the other room?” But a mediator who does this is applying her internal evaluation covertly. That’s where the leaking may begin.

One can imagine counsel saying to a client after the mediator leaves the caucus room, “She was being really careful, but did you notice that she spent a lot of time asking about how we’d prove lost profits? She said she ‘just wanted to be sure’ that we’d thought about it, but she was awfully persistent. I wonder if she was thinking we’re wrong?” Eventually, the divergence between the assumptions underlying a mediator’s queries and those supporting the disputants’ answers is likely to become apparent.

Communicating an evaluation through questions can also diminish its effectiveness. Research has found that stating opinions explicitly is more effective than hinting through queries. And if repeated reality-testing generates suspicion about a mediator’s impartiality, by the time she moves to direct evaluation the audience may have shut down and shut her out.

In sum, we think of evaluation as the “surgery” of mediation: A technique to be used sparingly and only when necessary, but, when applied well, a potentially powerful tool to prompt settlement.

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This article is an abridged and edited version of one that originally appeared on page 22 of Dispute Resolution Magazine, Summer 2019 (25:4).

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Dwight Golann

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Dwight Golann is a professor at Suffolk University Law School.

Marjorie Corman Aaron

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Marjorie Corman Aaron is a professor at the University of Cincinnati College of Law.