MEA CULPA: I had a busy summer. Family vacations. Getting my daughter married. Fishing in Alaska. A week at Mayo Clinic for family. AND a hectic work schedule. As my wife might say, metaphorically, I let the grass grow high on my blog!
With that, back to work.
I recently read a good article by two law professors in an American Bar publication (Dispute Resolution Magazine), entitled “Beyond Abstinence.” It dealt with the issue of mediator evaluations, and the wisdom, value and ethics of mediators providing evaluations of issues in dispute.
This is not a new topic.
In the mediation course I teach at the University of Alabama, I tell students there are two types of mediators. Evaluative and Facilitative. I would describe myself as facilitative by nature, but willing to be evaluative — if, for instance, it helps overcome an impasse, or maybe if a lawyer’s client has become tone deaf to their advice and counsel.
The article above cautions mediators on offering evaluations, given the possibility of creating a perception of bias — thereby compromising their position of impartiality in mediation. Another concern is that evaluations may diminish parties’ proactive roles in advocating their clients’ positions, and determining outcomes.
While I would agree that these are legitimate concerns, I also agree with the authors’ conclusion — that the benefits of making evaluations outweigh the risks associated with offering them.
That said, given the risks mentioned above, as a mediator, I always offer evaluations with extreme care — paying particular attention to when and how I offer evaluations.
I couldn’t say it better myself.
The article’s authors, Dwight Golann and Marjorie Corman Aaron, write, “We think direct evaluation, done well, should be an assessment and 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. Good evaluation, then, is akin to a professional weather forecast, except that the mediator is predicting the atmosphere in a future courtroom or arbitration. Such predictions are relevant because parties almost always see adjudication as their most likely alternative to settlement.”
This is not how it’s done.
One of my partners tells of a construction case he handled, for which a mediator was flown in from Miami — at a flat rate of $10,000. Within the first hour of the mediation, the mediator told all of the parties that he’d read the entire file — and in his opinion, the case should settle for $100,000. With that, he viewed his work as complete, and was ready to catch his plane home.
In my opinion (and, it goes without saying, in my partner’s opinion) this was not a helpful evaluation. It was an arrogantly-delivered assessment of value that did little to assist the parties in their disagreement.
A helpful evaluation is not magic.
Most disputants have been living with their cases for months or years. If their attorneys are competent, they’re aware of the flaws in their cases, and probably hope to keep them well-covered. Evaluations can assist parties by helping them realize that these flaws can, and usually will, impact the value of their respective cases. Evaluations can also help lawyers with clients who are struggling with, or resisting, making good decisions.
The summary of Professors’ Golan and Aaron’s article, which I agree with, is that mediators should use evaluations as a useful tool (one with limitations), rather than as a means to an end.
Skillful mediators know this, and use evaluations effectively; thereby, maintaining the overall facilitative nature of the mediation process. It’s certainly how I try use them, but I still found the professors’ article to be an excellent reminder of my responsibilities in disputes that warrant my evaluation.
Enjoy the journey.