Although mediators prefer not to be pigeonholed, the truth is that we each stick to our own philosophy. Many mediators value mediation’s potential to empower parties. That is, unlike adjudication, arbitration and evaluative methods, mediation need not be a top-down experience in which the parties are expected to defer to the mediator. But the approach most often used by retired judges, long-time litigators and others who market their services to lawyers does not empower the parties. That quasi-legal process is widely called “evaluative mediation”. We who see mediation as an opportunity for parties to make progress on their conflict at all levels, would prefer that that process not be called mediation. “Settlement-conferencing” might be more accurate.
Nonetheless, I’ll refer to settlement conferencing as “evaluative mediation”, since that’s what it’s called so widely. For evaluative mediation, it makes sense that the mediator should be a legal expert. A mediator’s knowledge of the law and experience with litigation are likely to make them more credible with the parties, and therefore more able to persuade the parties to compromise. Each side hopes that the mediator will understand their legal argument and help persuade the other side of its strength. In practice, these mediators tend to emphasize to both sides how uncertain and expensive ongoing litigation might be. These mediators hope to help parties let go of such things as their principles, their sense of justice, and their hope for vindication, so they are more able to accept a disappointing compromise. Whatever you call this process, here are five fundamental problems with it.
Evaluative Mediators Intentionally Mislead the Parties: Some evaluative mediators discuss with parties which aspects of their case are strong and which aspects are weak. Other evaluative mediators focus more generally on the costs and unpredictability of ongoing litigation. They use either or both of these focuses in an effort to convince parties that compromising is a better choice than continuing to litigate. While these mediators may couch their statements with acknowledgement that the future is uncertain, they hope the parties will take the warnings to heart and choose to compromise. These mediators intentionally focus more on the risks of litigation and less on its potential benefits. While there may be truth, in general, about these evaluations, it is false to assume that these generalizations apply in any particular case. A party’s decision not to compromise might well lead to a more favorable settlement for them, or it might lead to favorable judicial rulings. That is, it might be greatly to their benefit to hold firm to their position. Given the context, in which the mediator was chosen for their legal expertise, parties assume that there is some level of accuracy in the mediator’s suggestions about what the future holds. While the mediator may never make a statement that is clearly false, the net effect of their words is to deflate parties’ hopes. Evaluative mediators intend to sell the parties on compromise – settlement is the outcome they seek– accuracy is a lower priority.
The Process Prevents Meaningful Communication: Parties to an evaluative mediation hope that the mediator will evaluate their case favorably. The parties therefore focus on trying to convince the mediator of the strength of their case. Those attempts are far different from what the parties would say if they were trying to have a meaningful impact on each other. In evaluative mediations, the mediator appears to have the power, and parties lose site of the reality that they themselves and the other party are the ones with more direct influence over the outcome. Any possibility that the tone between the parties could change or that greater mutual understanding could emerge is lost.
It Offers, at Best, a Settlement that Both Sides are Unhappy with: In contrast to transformative mediation, where a high quality conversation between the parties can lead to all parties being genuinely happy with the outcome, many evaluative mediators encourage parties to resign themselves to a settlement that both sides are unhappy with. That’s an incredibly low standard. Lawyers I know who participate in these mediations, say “my clients are just glad it’s over.” While the parties may be glad the litigation is over, the lasting resentment, feeling of being victimized, and/or the sense that they were wrongly seen as a victimizer, can last a lifetime. Given that transformative mediation is available, there’s no reason parties need to settle for outcomes that are that painful.
It’s Inefficient: Evaluative mediators often ask for pre-mediation briefs from the lawyers. The lawyers spend time writing the briefs, and the mediator spends time reading the briefs, at the parties’ expense. These mediators also often schedule mediation for a full or at least a half day, and they charge for that time, as well. Compared to a transformative mediation, where briefs aren’t requested, and where mediations more often last only 2 or 3 hours, evaluative mediation is far less efficient.
It Doesn’t Even Settle More Cases than Other Approaches: There’s no convincing data about what percentage of evaluative mediations lead to settlement. Research on the US Postal Service’stransformative mediation program showed that over thousands of mediations, close to 80% led to no need for further action. There is no data to support that evaluative mediation is more likely to lead to settlement than transformative mediation is.
So why does evaluative mediation persist? What do you think?