Comments: Evaluative Mediation Techniques Help Achieve Success

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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.

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!).

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?

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.