Evaluative Mediation Techniques Help Achieve Success

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 (though there 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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David ,   Wellington, New Zealand	david.hurley@paradise.net.nz      09/04/08
A lawyer once told me that the difference a good mediator could make in intractable conflict was "the amount of positive energy" the mediator brought into the room. I suspect that this is what lawyers are looking for when impasse is reached, and as their expectations are around decision-making that, or something close to it is the option that occurs to them. "Positive energy" is itself an impasse breaker - you dont need opinions if the strategies are working. So when lawyers peceive things are stuck they are looking to the mediator for more than "It's your problem - I'm just here for the process" - effective though that can be on occasion. The comment is really a challenge to our impasse breaking skills. As a last chance option I suggest there is a real distinction between analysis and evaluation. Why offer advice that might lead to a claim of negligence? That is a lawyers risk. But a comparative analysis of what might need to be explored at court - leaving it to the party and lawyer to assess success or otherwise can be useful in part in helping a party see things from the other's (or a future neutral decision-makers)point of view. This is not early neutral evaluation because it respects a role boundary between the mediator and the lawyer - and indeed does not evaluate. It is giving information the party needs to enable them to make a wise choice - not advice on what they might do. My experience is that lawyers like this distinction and feel empowered by it. As to offering options if the parties have run out of ideas - I use the phrase "Would you like a smorgasbord of ideas that others have found useful in the past in similar circumstances? You can of course pick and choose or reject." Again more an empowering with information (only if they want it) rather than pushing an outcome. Add New Comment

Susan  Zaidel,   Haifa Is	susan_zaidel@bezeqint.net      09/04/08
mixed bag of tricks
For one thing, what the litigating lawyers want and what leads to "success" in mediation are two different things - here, the author's title is very misleading (except to show his bias...and of course, he too is an attorney). Secondly, the list of evaluative techniques is quite a mixture - not all the techniques are evaluative. In my view, the truly evaluative options have no place in a mediator's toolbox: 1. give an analysis of the case, including strengths and weaknesses (isn't that Early Neutral Evaluation?? why mix processes?); 2. make predictions about likely court results (also ENE). On the other hand, asking pointed questions that raise issues would seem to be OK, but without "implying answers" - only to get the parties to think about their case more deeply. As for suggesting possible resolutions or specific settlements, as long as they are mere "suggestions" to be considered, without applying pressure, that is also OK, especially if the suggestions balance the interests of both parties and if they are raised only after the parties have brainstormed and have not reached any agreement and have no more ideas of their own left. Applying some pressure - now that is hardly "evaluative", but certainly questionable nonetheless. The mediator may feel better about resolution than failure to resolve the case, but he is supposed to be neutral also about whether the case settles or not (that's why he gets paid by the hour and not by outcome!). Add New Comment

Joseph ,   Denver CO	joe@jpmcmahon.com      09/03/08
But what does this say about mediation
I do not disagree with Jeff's assessment of what the survey may say; this has been evident for awhile. Yet, I am troubled that the market has spoken and we seem to say that we, as mediators and mediation providers, are compelled to follow. Although many services in our economy are appropriately market driven, is mediation such a service? Conflict avoidance and denial favors the evaluative approach (E.g., Tell them how wrong they are about their case.) And that is the market. So is that what providing our professional services now means? Is that what is best for the future of conflict resolution and transformation? My experience is does not support this market driven approach to mediation. Rather, I fear the ADR/mediation industry (with some notable exceptions) tends to look in 2008 much the same as it did in 1988. I further fear we, as mediators, have already been excessively market driven. And perhaps will continue to be so driven. What is at risk are the real opportunities for mediation that may be lost in a market responsive approach by our profession. If mediators are to be market driven, do we become less a profession and much more a service provider? Add New Comment

Paula  Young,   Grundy VA	09/03/08
Slow Down a Bit
First, many of my friends and many people I respect deeply served on this committee. Nonetheless, this so-called "final" report troubles me. The pool of surveyed people was very narrow in terms of practice situations, age, race, culture, and typical use of mediation. Also, the number of surveyed people was relatively small. My fear is that people will use the report to endorse highly directive approaches to mediation. In Virginia, some of those practices, even if the lawyers want them, would violate provisions of our mandatory ethics code. I am waiting for the next "final" report that will survey other users of mediation. Add New Comment

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