Evaluative Mediation Techniques Help Achieve Success
June 2008
A March 2008 report of the American Bar Association's
Task Force on Improving the Quality of Mediation confirms what is obvious to
all who participate in commercial mediation: There is "overwhelming support"
for the conclusion that lawyers want mediators to provide "analytical input,"
or, as we more commonly call it, "evaluative mediation." The marketplace has
spoken.
by Jeff
Kichaven
Professional Mediation
& Arbitration
The Task Force's conclusion allows litigators and mediators to enter into
a new discussion about how all parties can work together to serve clients better.
We no longer have to beat the dead horse of the debate between "evaluative"
and "facilitative" mediation. In commercial cases, both evaluative and facilitative
techniques are necessary for mediations to succeed. The new discussion can probe
different aspects of "evaluative mediation" more deeply, understand them more
thoroughly, and use them more intelligently.
Evaluative Mediation Questions
"Evaluative mediation" is not one-size-fits-all. There are many ways a mediator
can analyze and evaluate a case. The litigator's responsibility includes distinguishing
between those ways and using the resource of the mediator in the ways that best
serve her client's interest. Here are some practical questions for litigators
to consider—and discuss in advance with their mediators—so that mediators' analytic
and evaluative techniques can work as well as possible in any given case.
Is the Mediator's Evaluation Welcome?
While the answer is generally "Yes," sometimes it will be "No." In some cases,
the mediator's evaluations will be needed only by the other side and not by
you (thoughthere is generally some benefit to the mediator sharing some analysis
or input with each party). If you don't want the mediator's analysis or evaluation,
please tell the mediator in advance. But be warned, it's hard for mediators
to refrain from evaluation entirely. Through tone of voice, facial expressions,
word choice, and otherwise, you will get some impression of what the mediator
thinks of your case.
When Is the Mediator's Evaluation Welcome?
Timing is everything. A common mistake among newer mediators is to lay on
too much evaluation too early. Remember, most experienced mediators would list
"evaluation" among "techniques for breaking impasse." It generally takes some
time at a mediation for an impasse to reach the point where "evaluative techniques"
become appropriate. Distinguishing that point can be difficult, and you know
your clients' temperaments best. So, litigators, if the time for evaluation
seems ripe to you, please say so if the mediator doesn't raise it first.
What Form Should the Evaluation Take?
A mediator's evaluations can take as many forms as there are stars in the
heavens. The Task Force's report lists some of the most common:
- Ask pointed questions that raise issues or imply answers.
- Give an analysis of the case, including strengths and weaknesses.
- Make predictions about likely court results.
- Suggest possible resolutions or specific settlements.
- Apply some pressure.
Most experienced mediators are adept at all of these techniques, and more.
Are some likely to be particularly effective with your client? How much pressure
do you want the mediator to exert? Again, litigators know their clients best.
If they share their insights with the mediator in advance, the mediator is more
likely to perform in a way that helps all involved.
Should the Mediator's Analysis Be a Negative Evaluation?
The conventional wisdom about "evaluative mediation" has long been that litigators
want mediators to tell the other side that they have a weak case. Sometimes,
that is indeed the request, but, at least as often, litigators want mediators
to help break bad news to their own clients. If that is the assistance needed,
it helps to tell the mediator in advance, to share what hasn't worked so far,
and also to share, in the litigator's best judgment, what is likely to work
at the mediation.
Should the Mediator's Analysis Be a Positive Evaluation?
Another piece of conventional wisdom about "evaluative mediation" is that
mediators just tell everyone involved that they have a weak case. This is not
how experienced mediators practice. And, it's a bad reputation for a mediator
to have. If a mediator reflexively demeans people's cases, the mediator will
do her thing, leave the room, and then have a lawyer turn to his client and
say, "She tells that to everybody. Don't believe her." Rather, it can be refreshingly
liberating to hear a mediator say, "You know, there are no guarantees in life,
but you have a pretty good case. I think you're likely to win. Now, are there
some reasons you might want to consider settlement anyway?"
What If the Mediator's Analysis Differs from the Litigator's?
At times, a mediator will analyze and evaluate a case differently than the
litigators involved. The mediator might have a blind spot—or the participants
might. In any event, both benefit if the mediator knows in advance how the litigators
would like the mediator to handle this possibility. There are many ways for
a mediator to bring these differences to the attention of the litigators, and
they probably have enough self-awareness to know the ways that will work best.
If the mediator knows the preferences in advance, the process of evaluation
at the mediation will go much more smoothly.
Evaluative Mediation during the Bargaining Phase
This checklist deals with a mediator's evaluations of the strengths and weaknesses
of legal claims and defenses—the most common evaluations that mediators provide.
There may be many other things that mediators are asked to evaluate as well,
and one deserves special mention.
During the bargaining phase of a mediation, a mediator can help litigators
evaluate how other parties are likely to respond to an offer or demand. The
principal purpose of contemplated offers or demands (defendants make offers,
plaintiffs make demands) is to generate a next demand or offer in response.
Yet, some of the worst deer-in-the-headlights looks during mediations come when
a mediator is asked to convey a proposed offer or demand, and then asks that
counsel,"How do you think the other side will respond?"
In at least three ways, a mediator can help litigators evaluate whether a
contemplated move is likely to generate the desired response. First, the mediator
can share her own opinion. Second, the mediator can caucus with the other parties,
ask how they would likely respond to a contemplated offer or demand, and report
back, with the permission of those other parties. Third, the mediator can facilitate
a meeting between opposing counsel, generally without clients, so that litigators
can obtain and assess the information for themselves. All of these techniques
can help prevent a contemplated move from provoking the other parties to leave
the mediation, or otherwise backfiring.
Proper Preparation Is Key
None of these evaluations, though, can happen without proper preparation.
Three steps are critical.
First, there needs to be communication between litigators and mediators regarding
the expected evaluations. Ideally, counsel and the mediator will be able to
discuss these issues on the telephone before the mediation. Mediators serve
counsel better when they know in advance exactly what is expected and have the
benefit of the parties' thoughts as to what is likely to work! If the conversation
can't take place before the mediation, there will likely be opportunities for
counsel and the mediator to huddle privately during the mediation day to make
sure that the process is on track.
Second, to enable private meetings between counsel and the mediator to take
place, your clients need to understand that there may chunks of the mediation
in which they will not take part. In a healthy lawyer-client relationship, clients
trusts their lawyers enough to overcome any misgivings about being excluded
from part of the process. Sometimes, the explanation is that, to get the other
lawyer away from her "difficult" client for more productive conversations with
the mediator, symmetry requires that your client be excluded for a short time
as well. The keys are that the client not be taken by surprise, and understands
that these conversations are a normal part of the process.
Finally, evaluation generally begins best with each litigator's opening statement
in a joint session. When counsel puts its best foot forward, the mediator can
then take what the litigators have said into caucus with the other side and
drive these points home without appearing to argue. For example, a mediator
may say in caucus, "The other lawyer just made some interesting points in support
of her position, and we need to talk about them. What do you think of Argument
X?" Conversation, rather than argument, is likely to follow, and these points
will likely be taken seriously.
By contrast, if there have been no opening statements, the mediator has a
harder time putting those words into the mouths of the litigators. She is more
likely to express evaluations as her own opinions: "I think the other side makes
some interesting points in support of its position, and we need to talk about
them. What do you think of Argument X?" This frames what comes next as a debate
of the mediator's opinions rather than a discussion of the points of the case.
Progress requires concessions to the mediator, and nobody likes to concede anything
in a debate.
Conclusion
Litigators benefit when they make it easier for mediators to do their job.
Advance consideration of the issues related to "evaluative mediation" and preparation
to meet those issues will result in better performance by mediators, more settlements,
and greater client satisfaction.
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