I remember being asked this question a few years by a lawyer who was in the middle of a mediation of a complex case. When I asked who the mediator was, she answered with the name of a retired judge. I was surprised at first since we often hear about former judges who supposedly cannot resist the temptation to evaluate every set of facts that comes before them.
I continue to hear similar expressions of frustration about mediators, with or without judicial backgrounds, who refuse to give evaluations. Why should this be so? While I did write recently about the importance of being effective as opposed to just evaluative, parties ought to be able to get evaluations when they want them.
If what parties really want is an evaluation, the answer is simple. Ask for it up front when hiring the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose. These processes can be used on their own, or they can be combined with mediation if the parties so choose.
Early this year I was hired to give a neutral evaluation in a commercial real estate dispute. In talking with the parties beforehand I learned that while they were interested in exploring settlement options their real objective at the time was to obtain my opinion on the merits of their positions. To satisfy their needs, we combined two processes. We conducted a mediation that included a neutral evaluation. The advantage of this approach was that the evaluation could be given in a setting that was confidential under California law and could not be used as evidence if the matter did not settle.
The point here is that both parties to this case wanted the process to be primarily evaluative. It was not like a situation where one party is expecting the mediator to be evaluative and the other party wants the mediator to refrain.
When parties hire a mediator, they need to be of the same mind about the process. Otherwise the result will be like splitting a steak with your partner when one of you likes it rare and the other likes it well done. Somebody is going to get indigestion!
Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present.
George Washington’s 1st Rule of Civility
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.