“Based on my years of experience as a litigator and as a judge, I’d say your latest positions are both within the reasonable range for this case. I’d say the plaintiff’s demand of $200,000 is on the high side of that range; and I’d say the defendant’s offer of $100,000 is on the low side of that range. So I’d say that any settlement you arrive at now, between those numbers, would be a good deal for both sides, considering the costs and uncertainty of continued litigation.”
This is the sort of thing an evaluative mediator says to parties. This mediator was talking to both parties – it would be more common to talk to each side separately – in that situation she could say to the defendant “I think $100,000 is low and won’t be quite enough to settle the case” – and she could say to the plaintiff “I think $200,000 is high and I don’t think you’ll get that in this case.” Thus, the evaluative mediator can nudge both sides toward a compromise settlement. And that’s her job, right?
Maybe not. Here are my rationales for abstaining from practicing this way:
A meaningful mediation process might focus on many issues other than the amount of the settlement. First, there are many other terms of a settlement that could be beneficial, but which might not be discussed if the mediator keeps the focus on a settlement amount. Those other terms include confidentiality, publicity, measures to prevent others from suffering similarly, ongoing services provided by a defendant, letters of recommendation for employment plaintiffs, agreements to collaborate in litigation against other parties, joint ventures between the parties, agreements about how to handle any necessary continued litigation, and many more. Second, parties care about procedural justice. It’s common that parties believe a mediator was biased and/or mistaken in his evaluation. Even if a deal is reached, it might cause ongoing distress for both sides and/or the settlement might fall through, if the parties don’t feel that the process was fair. And third, people’s motivation for suing often is not a cost-benefit analysis. This mediator’s focus on a cost-benefit analysis might be utterly irrelevant to the parties’ sense of justice, of what actions they see as consistent with maintaining their integrity, and of what the parties see as taking the high road.
Self-determination means more than the absence of a judge. While self-determination is universally agreed to be a fundamental value of mediation, it is often undermined in the name of reaching a settlement. A party who experiences genuine support for self-determination in the mediation process can gain clarity about her values, can become aware of her ability to achieve more than she thought, can get back in touch with the humanity of the other side, can make better decisions about how best to handle the situation, can make a better cost-benefit analysis to the extent that’s relevant, and can feel good about accommodations she makes to the other side. Evaluation interferes with these effects. These party generated insights and capabilities are lost when mediators’ judgments and advice over-ride party self-determination.
Evaluations are bogus. While evaluative mediators are often careful to acknowledge the uncertainty of litigation, their willingness to offer their guess of a reasonable range or to comment on the reasonableness of a certain offer, is misleading. It implies that their guess is reliable in some way, despite the evidence that different evaluators’ guesses vary widely. Also, it implies that a guess about a jury verdict should be a deciding factor, ignoring all of the other possible occurrences that could affect amounts collected: post-mediation negotiations, procedural flukes, post-verdict appeals, bankruptcies by defendants, and unpredictable behavior by either party.
There’s no evidence that evaluation makes settlement more likely. There are no comprehensive statistics that measure settlement rates of mediations. But given the number of anecdotes I hear about evaluative mediations that don’t lead to settlements, I believe the settlement rates are well under 80%. In the US Postal Service’s REDRESS program, around 80% of cases required no further action after a mediation session – a transformative mediation session, meaning that not only did the mediators abstain from evaluating, they were also expected to abstain from any sort of nudging toward settlement. It appears that mediators who abstain from trying to persuade parties to settle foster more settlements than those who nudge. And the REDRESS program’s satisfaction rates, of 90% of parties on both sides reporting satisfaction with the process and with the mediator, seem far higher than what one hears about more directive mediation.
The public is confused enough about what mediation is without mediators adding to their confusion by blurring the lines ourselves. Already, when I tell people I’m a mediator, they often confuse that role with that of arbitrator. The more common it is that mediation is similar to arbitration, the less the public will be aware of the empowering potential of mediation.