Sunday, April 20, 2008

Should a Mediator Evaluate?

One enduring debate in the mediation community concerns whether mediators should provide their own evaluations to the parties/clients. If the case is about dollars, and the parties are at impasse, some feel that the mediator can provide a "dose of reality" by weighing in with his or her own opinion on value. Others feel that this approach represents a retreat from the neutrality that characterizes the role of the mediator and inevitably damages the process.*

While I can agree with some of the points made by both sides, I personally believe that mediators shouldn’t provide their own evaluations. I have come to this conclusion primarily because I do not believe I am any better at determining value than the next person. In the context of civil litigation, evaluations represent an attempt to predict the future after factoring in all sorts of variables: the statistical range of jury verdicts (see, e.g., "Ask Not for Whom the Bell Curve Tolls"); the cost of taking the matter to judgment; the personal aggravation of dealing with a lawsuit; the parties’ personal risk tolerance, etc.

Risk tolerance is particularly important in evaluating civil litigation. It is also completely impossible for the mediator to assess its impact. Because the mediator cannot get completely into a party’s thought processes, all it is possible to do is say what the mediator thinks the assessment ought to be, not what it is.

Look at it this way: I may believe it is foolish to waste money betting on a horse at forty to one odds, or buying a Power Ball ticket. But I cannot say that doing these things would be foolish for the other person. My job as a mediator is not to prevent people from doing things I think are foolish, but only to do everything in my power to make sure that they understand the risks involved and make a knowing decision that takes those risks into account. It is not my job to tell you that you shouldn't draw to an inside straight, but only to tell you that the odds against improving it are eleven to one.

Because each person assesses risk differently, each has a different concept of value. The goal of mediation is not settlement at all costs; it is voluntary resolution. Thus, it is counterproductive for the mediator to recommend a settlement figure that differs from a party’s "eyes open" valuation.

* For a comprehensive discussion on the debate, which tilts toward the judicious use of the technique in some (but not all) circumstances, see Dwight Golann & Marjorie Corman Aaron, "Using Evaluations in Mediation," in American Arbitration Association Handbook on Mediation, ed. Thomas E. Carbonneau & Jeanette A. Jaeggi (Huntington, NY: JurisNet, LLC, 2006), 125-138.


Tammy Lenski said...

Welcome to the ADR blogosphere, John, from a fellow NH mediator! It's a cool place to hang out.

Tammy Lenski,

John Lassey said...

Thanks, Tammy. I have added your blog to my list of links, and look forward to reading (and commenting on) your postings.