Evaluative mediation is generally understood to be a process which may include an assessment by the mediator of the strengths and weaknesses of the parties’ cases and a prediction of the likely outcome of the case. While I am in favor of having parties choose any neutral process they desire, there must be clarity and agreement among the neutral and the parties as to what the process is and what it is not. I fear that parties and mediators do not have the same expectations regarding evaluative mediation.
Some parties wish to retain an evaluative mediator to help them get an objective view of their case and to prod the parties to reach a reasonable settlement based upon the merits of their case. For parties who wish to get an actual opinion on the relative merits of their case, they are probably best advised to obtain the services of a neutral evaluator.
Neutral evaluation is a disciplined and principled process. The neutral is chosen for knowledge and experience and listens to the arguments of both sides, researches the matter and comes up with an opinion. Evaluative mediation is different. To the extent that parties believe they are obtaining a mediator who will also give a neutral evaluation, they may be under a misapprehension.
An evaluative mediator may or may not offer any opinion regarding the merits of the case. The mediator may make statements that imply to the parties that the mediator has an opinion. The parties may assume that the stated or implied opinion is based upon the mediator’s actual knowledge of the law. However, the mediator is unlikely to do any research, and his opinion may be based upon the arguments as stated by the attorneys rather than any independent knowledge or research on the issues in the case. Or the opinion may be based upon a common sense view of the matter.
One of the tools of the evaluative mediator is the mediator’s proposal. The proposal is a settlement amount which the mediator suggests to the parties. It can have a strong impact since it is coming from the mediator, and some parties may assume that it is based upon the mediator’s independent knowledge of the law and understanding of the case. However, the proposal may not be tied to any particular legal view of the case, but may be a dollar amount that the mediator believes will appeal to both parties. Most problematically, the choice of dollar amount favors the party who has bargained strategically, who has withheld information and who has taken a hard line. Yet, these are the very actions that we want to discourage in facilitative mediation. Thus, knowing that a mediator may make a mediator’s proposal is likely to frustrate the facilitative mediation process. The two are therefore incompatible.
In my view, neutral evaluation is a reasonable service that parties may want to attain. Evaluative mediation is a different and more confusing animal. My concern is that there may be a lack of clarity on the part of the parties as to what the mediator is basing his opinion on. To the extent that the mediator is only helping the parties explore the law related to the case, as argued by the parties, this may not be evaluative mediation at all. A facilitative mediator may feel it is appropriate to fine tune the lawyers’ elocution of their legal arguments, and clarify their disagreement regarding the law as a way of narrowing the issues and gaining clarity for the parties and attorneys. A facilitative mediator would be clear that he is not bringing his own knowledge of the law to the task, but is simply narrowing the issues as presented by the attorneys. An evaluative mediator may be doing just this, but unless he is clear that he is not bringing his own knowledge to the task (and if he is an evaluative mediator, why wouldn’t he?), then the parties may assume, incorrectly, that he is doing so. In the situation where an evaluative mediator is acting as a neutral evaluator, but is not being rigorous in obtaining all the facts or researching the law, is he really providing the service that the parties expect? While I am in favor of offering parties any neutral dispute resolution service they desire, the nature of that service should be clear to both the mediator and the parties. The expectations of the parties must be made clear and the mediator must determine that he can meet those expectations before taking on the job.