Evaluation During Mediation

“Some mediation theorists believe that the technique has no place in ‘true’ mediation, a purely facilitative process in which parties are left free to make their own judgments about the merits of a case without interference from the mediator.”

So wrote Professors Dwight Golann and Marjorie Corman Aaron in “Using Evaluations in Mediation” (AAA Handbook on Mediation, 2010).  The authors noted that “some commentators believe that for a mediator ever to evaluate raises ethical questions” because the typical standards of conduct for mediators prohibit combining the role of mediator and professional adviser.  The authors nevertheless recommended evaluation “as a legitimate weapon in the mediator’s arsenal” albeit with the caution that evaluation “can be either effective or explosive depending on how and when it is used.”

The National Mediation Rules of the ADR Institute of Canada provide that the mediator “shall not act as an advocate for any party to the mediation” and “is not providing legal or professional advice to any of the parties”.  However, the mediator “may express views or opinions on the matters in issue and may identify evaluative approaches.”

In The Art and Science of Mediation (Emond Montgomery Publications, 2004), the authors described the “facilitative mediator” as one “who assumes that the parties are capable of developing better solutions than those a mediator might create.”  This mediator helps the parties “understand and define the problems they wish to address, including a discussion of underlying interests, rather than positions”, and see the mediator’s role as “helping the parties communicate and understand one another”.

The “evaluative mediator… assumes that the participants want and need the mediator to provide direction… assessing the strengths and weaknesses of parties’ claims, predicting court outcomes, developing and proposing a settlement and pushing parties to settle based on (the mediator’s) assessment of their claims.”  (pp. 112-113)

If, and when, to evaluate is always a question of the mediator’s judgment.  In my experience, injecting evaluation into an otherwise facilitative mediation can be helpful particularly to parties whose mediation is conducted during litigation.  Evaluation should assist one or other of the litigants to assess their “best alternative to a negotiated agreement”, which is carrying on with usually expensive and uncertain litigation.  Indeed, litigation counsel invariably retain mediators they believe are able to combine skill as a facilitator with practical experience acquired as a jurist or trial counsel.  Counsel and litigants expect that a retired judge, for example, will at an appropriate time in the mediation share comment on what they consider to be the relevant law, their probable findings on disputed facts and/or their assessment of the equities or “fairness” of the respective positions once it becomes apparent that facilitation has not eliminated all the “positional” barriers to resolution.

In this context, evaluation during mediation is not “interference from the mediator” but, rather, assistance from the mediator.

The timing of the evaluation is significant.  Early in any mediation is no time for evaluation.  I was counsel in one mediation conducted by a retired judge who at the beginning of the first breakout session with aligned defendants stated, with an air of judicial certainty, the monetary amount for which the case should settle.  The mediator apparently forgot that the event was not a judicial pre-trial.  The defendants’ respective insurers adopted the mediator’s comment as a position from which they would not move and the mediation was ultimately unsuccessful.

I suggest that mediators should evaluate only when expressly asked and only to the extent requested by counsel, or a self-represented litigant unless the mediator considers it absolutely necessary to help the parties by evaluating a matter that will otherwise doom the mediation to failure.

Professors Golann and Aaron were even more cautious.  They wrote that a danger of evaluation during mediation is damaged mediator credibility.  “A neutral’s greatest asset in bringing about a settlement is the rapport and confidence that he or she develops with the parties and their counsel… if however, a mediator delivers an evaluation too quickly or in the wrong way, the ‘losers’ in the evaluation are likely to react badly” and may “decide that the neutral has gone over to the other side… a badly done evaluation can destroy a mediator’s power to influence the losers and, perhaps everyone, in a case.”  The authors accordingly recommended evaluation only in those cases “when traditional techniques fail to persuade a party holding a deeply-held, but unrealistic, view of the merits.”

Retired Superior Court Justice Elizabeth Quinlan of Ex Juris Mediations comments that in her experience parties and counsel appreciate a mediator who combines a facilitative and evaluative approach to mediation.  She raises the issue during her pre-mediation communication with counsel, who have to date always responded that they would welcome her evaluation during the mediation if an evaluation would promote settlement.