The debate in the world of mediation is generally one of facilitative versus evaluative. The origins of this debate may derive from the perceived admonitions of various mediator ethics rules. This is largely a misperception. In fact, the ethics requirements and best practices of most states as well as those of the Model Mediation Act stress the importance of party autonomy and party self-determination. For some reason, this has translated into a sort of informal rule prohibiting evaluation.
As far as commercial cases, this “rule” is observed more in the breach. Lawyers and parties in commercial cases tend to prefer mediators with subject matter expertise who are qualified to evaluate. While they may be influenced or educated by the mediator’s evaluation, sophisticated parties and lawyers are not coerced. They retain their power of self-determination and often welcome the neutral’s educated perspective.
Although the debate is largely about evaluation versus facilitation, the Model Standards of Conduct for Mediators as well as state rules do not really speak to evaluation. They speak to neutrality and impartiality. The rules speak about party self-determination and the prohibition of coercion. Perhaps because the tradition of mediation originated with community and family mediation, the prohibition against coercion became equal to evaluation. It would make sense that a mediator’s evaluation of risk and most likely outcomes might be coercive to a pro se community litigant or pro se disputant engaged in a custody and visitation dispute. This impact would be far less likely were the mediator to provide an expression of likely outcome to counsel and parties in a large and complex commercial dispute.
A direct approach to evaluation is readily identifiable as such. It may be preceded by a statement identifying itself as the mediator’s professional assessment. Many mediators may also frame their evaluation as derived from extensive practice-based experience deciding or trying similar cases. This direct approach may be couched in terms of percentages or in some cases of certainty. It may identify winners and losers and the size of any monetary award. Once this evaluation is given, the parties have a reference point that can inform the settlement. It also removes the uncertainty as to what constitutes a good deal. If you do better than what the mediator perceives as the likely outcome, you win. Do worse than the mediators’ evaluation and you lose. This approach is helpful to lawyers with client control issues. The gravitas of a retired judge telling a reluctant plaintiff she will lose her case at trial is powerful confirmation of the lawyer’s private advice. The numbers also give lawyers cover for delivering bad news to their clients. This process is efficient. Once the mediator has read all the relevant pleadings and documents and heard from the parties, the mediator is in a position to make an informed assessment. With a certain dynamic of client and lawyer, this style is also successful and can resolve many cases.
There are however disadvantages to this approach. Sophisticated clients and lawyers will know their case better than the mediator and may not accept an evaluation that departs significantly from their own assessment. Confirmatory bias or the tendency to believe that which is consistent with one’s belief and to dismiss that which contracts it may fuel the reluctance to accept an evaluation that differs significant from one’s own assessment. In addition, while this process can resolve a case quickly, it can also end the mediation just as quickly. Once the mediator has disclosed her evaluation, there is likely to be a change in the dynamic. The mediator may be perceived as favoring one side or the other. This loss of neutrality is a challenge to continuing the mediation. Therefore, while this style is efficient in settling cases quickly it may also lead to more impasses with equal speed and efficiency.
Contrary to this direct style is the indirect style of evaluation. Mediators skilled in this form of evaluation rely on the use of questions or non-verbal communication designed to require a party or a lawyer to examine aspects of their case they may have dismissed or overlooked. Through a more protracted conversation focused on “risk assessment” or “reality testing” the party or lawyer examines and verbalizes the inherent weaknesses of her case. Unlike the direct approach, this is coming from the party or the lawyer rather than being imposed on the party or the lawyer. This style also requires subject matter expertise to form the basis of the mediator’s assessment. But since the mediator is drawing on the party or lawyer’s own internal realization of weaknesses, it is less reliant on gravitas and more reliant on process skills. This indirect approach is more likely than the direct approach to be successful in changing the expectations of the parties and counsel. With skills and patience, this style is more likely than the more direct approach to resolve even the more challenging cases. The main disadvantage to this approach is time. Those preferring a quick resolution regardless of whether it is a settlement or impasse may lack the patience to allow this process to play out.
It is generally agreed that regardless of whether the style is direct or indirect any evaluation should only take place after the mediator is prepared to provide the evaluation and when the parties are prepared to hear it. This is usually later-on in the process. Few skilled mediators begin a mediation with an evaluation. As to matching the style with the case, easier cases may benefit from a more efficient process and a mediator comfortable and suited to delivering a more direct evaluation. More challenging complex dynamics will benefit from a more indirect process-savvy mediator.
In addition to the fact that not all audiences equally receive all evaluations, not all evaluations are equal. Therefore, when thinking about how your mediator evaluates, the considerations should include the intended audience, whether it is counsel and/or parties; the timing, when in the course of the mediation the mediator shares her evaluation of the dispute; whether the mediator uses a direct or indirect approach; and the bona fides of your mediator.
Joan Stearns Johnsen is with JSJ-ADR and a professor at University of Florida Levin College of Law in Gainesville, Florida.
Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).