A March 2008 report of the American Bar Association's Task Force on Improving the Quality of Mediation confirms what is obvious to all who participate in commercial mediation: There is "overwhelming support" for the conclusion that lawyers want mediators to provide "analytical input," or, as we more commonly call it, "evaluative mediation." The marketplace has spoken.
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.
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.