I have been thinking about my colleague Victoria Pynchon's recent post
on evaluative mediators.
There is a saying that "less is more." Or as we are somtimes told: don't overdo it, or don't try too hard. How does this advice apply to mediators?
In our eagerness to settle cases, we can sometimes be tempted to say things that would best be left unsaid. The most frequent temptation is to inject our own opinions or evaluations into the equation, whether they are needed, wanted or not.
Lest I be misunderstood, I have seldom if ever refused someone's request for my views on the issues. I will also confess that I have found it necessary at times to offer my unsolicited neutral point of view when I could see that someone was about to get him/herself into real trouble by pursuing an untenable position. I have always done this in a private caucus in order to avoid embarrassment or an appearance of partiality. In these rare instances, the parties have always been willing to listen and appreciative of the help.
I am also mindful of the fact that experienced and sophisticated users of mediation want analytical assistance from their mediators. (See my September 1 post on a "High Quality Mediation.")
One way that we get into trouble, however, is in the situation where one side wants us to be evaluative by agreeing with their position and then persuading the other party to go along. Here, we need to very careful, remember our obligation to remain impartial and follow the Biblical admonition that no person can serve two masters.
There is a downside, too, to the use of unsolicited evaluations when they are given in the wrong way, and especially when they relate to an offer to settle. Writing in the July 2007 issue of the Texas Bar Journal Online
, attorney Lucian Adrian Rodriguez noted that "..strong arm tactics negatively affect the non-accepting party's opinion about the mediator and the mediation process. This is why the better mediators refrain from giving their own opinions about the offer or proposal, and go to great lengths not to force one party, or any party to accept an offer or proposal." In other words, these tactics will often backfire and result in a failed mediation.
Having a little humility when mediating can never hurt. The parties and their counsel usually know (or they should know) more about their cases than we do. If the lawyers are doing their job, they have already done their own evaluations and may not appreciate being second-guessed.
Many successful mediators are known for being evaluative, but the best of us are known for being effective
because we have lots of other tools in our toolbox and we know how and when to use them. Which would you prefer?
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.