Frames:
THE TOP TEN REASONS WHY MEDIATORS SHOULD NOT EVALUATE

LELA P. LOVE[*]

Copyright © 1997 Florida State University Law Review

I. THE ROLES AND RELATED TASKS OF EVALUATORS AND FACILITATORS ARE AT ODDS
II. EVALUATION PROMOTES POSITIONING AND POLARIZATION, WHICH ARE ANTITHETICAL TO THE GOALS OF MEDIATION
III. ETHICAL CODES CAUTION MEDIATORS AND OTHER NEUTRALS AGAINST ASSUMING ADDITIONAL ROLES
IV. IF MEDIATORS EVALUATE LEGAL CLAIMS AND DEFENSES, THEY MUST BE LAWYERS; ELIMINATING NONLAWYERS WILL WEAKEN THE FIELD
V. THERE ARE INSUFFICIENT PROTECTIONS AGAINST INCORRECT MEDIATOR EVALUATIONS
VI. EVALUATION ABOUNDS: THE DISPUTING WORLD NEEDS ALTERNATIVE PARADIGMS
VII. MEDIATOR EVALUATION DETRACTS FROM THE FOCUS ON PARTY RESPONSIBILITY FOR CRITICAL EVALUATION, RE- EVALUATION AND CREATIVE PROBLEM- SOLVING
VIII. EVALUATION CAN STOP NEGOTIATION
IX. A UNIFORM UNDERSTANDING OF MEDIATION IS CRITICAL TO THE DEVELOPMENT OF THE FIELD
X. MIXED PROCESSES CAN BE USEFUL, BUT CALL THEM WHAT THEY ARE!

The debate over whether mediators should "evaluate" revolves around the confusion over what constitutes evaluation and an "evaluative" mediator. The following examples describe two situations in which the mediators operate in an evaluative capacity.

During the course of an employment termination dispute, Eric Green[1] "tells both sides privately that, in his opinion, $600,000 . . . is the settlement value of the case."[2] Green pushes the employer towards settlement by saying, "It was your corporation's responsibility to live up to its moral obligations."[3] When the former employee resists the $600,000 figure, Green's responds, "How greedy can you get?"[4] In the second example, during a divorce mediation, the husband appears friendly and gregarious while the wife is calm and poised, but somewhat cool.[5] The mediator repeatedly favors the husband in a manner indicating that she enforces the groundrules.[6] When the wife mentions her debilitating health problems, the mediator laughs and says, "You don't have to act sick to get what you want."[7]

In the first example, Green evaluates by assessing a fair settlement value of the case and pressing the parties to accept that settlement value. In the second example, the mediator evaluates by making and articulating a judgment that the party is acting sick as a ploy to advance her position.

An "evaluative" mediator gives advice, makes assessments, states opinions—including opinions on the likely court outcome, proposes a fair or workable resolution to an issue or the dispute, or presses the parties to accept a particular resolution.[8] The ten reasons that follow demonstrate that those activities are inconsistent with the role of a mediator.

I. THE ROLES AND RELATED TASKS OF EVALUATORS AND FACILITATORS ARE AT ODDS

Evaluating, assessing, and deciding for others is radically different than helping others evaluate, assess, and decide for themselves. Judges, arbitrators, neutral experts, and advisors are evaluators. Their role is to make decisions and give opinions. To do so, they use predetermined criteria to evaluate evidence and arguments presented by adverse parties. The tasks of evaluators include: finding "the facts" by properly weighing evidence; judging credibility and allocating the burden of proof; determining and applying the relevant law, rule, or custom to the particular situation; and making an award or rendering an opinion. The adverse parties have expressly asked the evaluator—judge, arbitrator, or expert—to decide the issue or resolve the conflict.

In contrast, the role of mediators is to assist disputing parties in making their own decisions and evaluating their own situations. A mediator "facilitate[s] communications, promotes understanding, focuses the parties on their interests, and seeks creative problem solving to enable the parties to reach their own agreement."[9] Mediators push disputing parties to question their assumptions, reconsider their positions, and listen to each other's perspectives, stories, and arguments. They urge the parties to consider relevant law, weigh their own values, principles, and priorities, and develop an optimal outcome. In so doing, mediators facilitate evaluation by the parties.

These differences between evaluators and facilitators mean that each uses different skills and techniques, and each requires different competencies, training norms, and ethical guidelines to perform their respective functions. Further, the evaluative tasks of determining facts, applying law or custom, and delivering an opinion not only divert the mediator away from facilitation, but also can compromise the mediator's neutrality—both in actuality and in the eyes of the parties—because the mediator will be favoring one side in his or her judgment.[10]

Endeavors are more likely to succeed when the goal is clear and simple and not at war with other objectives.[11] Any task, whether it is the performance of an Olympic athlete, the advocacy of an attorney, or the negotiation assistance provided by a mediator, requires a clear and bright focus and the development of appropriate strategies, skills, and power. In most cases, should the athlete or the attorney or the mediator divert their focus to another task, it will diminish their capacity to achieve their primary goal. "No one can serve two masters."[12] Mediators cannot effectively facilitate when they are evaluating.[13]

II. EVALUATION PROMOTES POSITIONING AND POLARIZATION, WHICH ARE ANTITHETICAL TO THE GOALS OF MEDIATION[14]
When disputing parties are in the presence of an evaluator—a judge, an arbitrator, or a neutral expert—they act (or should act) differently than they would in the presence of a mediator. With an evaluator, disputants make themselves look as good as possible and their opponent as bad as possible. They do not make offers of compromise or reveal their hand for fear that it weakens the evaluator's perception of the strength of their case.[15] They are in a competitive mind-set seeking to capture the evaluator's favor and win the case.

While adversarial confrontations between parties are helpful to a neutral who must judge credibility and clarify the choices he or she must make, such confrontations are not helpful to collaboration. Adversarial behaviors run counter to the mediator's efforts to move parties towards a different perception of their own situation and of each other.[16] While parties typically enter the mediation process in a hostile and adversarial stance, the mediator seeks to shift them towards a collaborative posture in which they jointly construct a win-win solution. An atmosphere of respectful collaboration is a necessary foundation for creative problem-solving.[17]

III. ETHICAL CODES CAUTION MEDIATORS AND OTHER NEUTRALS AGAINST ASSUMING ADDITIONAL ROLES

The ethical codes explicitly include a preference to keep processes "pure." The Model Standards of Conduct for Mediators highlight party self-determination as being the fundamental principle of mediation.[18] The committee that created the Model Standards rejected mediation as an evaluative process.[19] The comments to the Model Standards state that "[a] mediator should . . . refrain from providing professional advice. Where appropriate, a mediator should recommend that parties seek outside professional advice, or consider resolving their dispute through arbitration, counseling, neutral evaluation, or other processes."[20]

Similarly, ethical codes for arbitrators encourage those neutrals not to participate in settlement discussions unless requested to do so by all parties.[21] Important rationales for this rule are: the arbitrator may be improperly influenced by the settlement discussions; the arbitrator may impede the discussions by his or her presence; and the arbitrator's questions and suggestions while acting as a mediator can create improper pressure to settle.

Consequently, a mediator undertaking to give an opinion on the likely court outcome of a particular claim or a fair resolution of a particular matter should give an accurate label of the new role he or she is assuming[22] and obtain the disputants' informed consent for undertaking the new role. Also, the mediator should be sure that the disputants understand that taking on an additional role might adversely impact the ability to facilitate discussions. When processes become "mixed," such as when an arbitrator mediates or a mediator evaluates, it should be at the request and with the informed consent of the parties.

IV. IF MEDIATORS EVALUATE LEGAL CLAIMS AND DEFENSES, THEY MUST BE LAWYERS; ELIMINATING NONLAWYERS WILL WEAKEN THE FIELD

If it is acceptable or customary for mediators to give opinions on likely court outcomes or the merits of particular legal claims or defenses, then only lawyers and substantive experts will be competent to mediate.[23] The comments to the Model Standards state that a "mediator who undertakes, at the request of the parties, an additional dispute resolution role in the same matter assumes increased responsibilities and obligations that may be governed by the standards of other processes."[24]

While this result may be good news for lawyers, the mediator pool would be substantially weakened by the loss of the talents and perspectives of nonlawyers.[25] Furthermore, if the field is theirs, lawyer-mediators will likely pull mediation into an adversarial paradigm.[26] One noted authority in the mediation field, reacting to a Florida rule requiring mediators of certain cases to be either experienced lawyers or retired judges, proclaimed this requirement to be "the end of good mediation."[27]

V. THERE ARE INSUFFICIENT PROTECTIONS AGAINST INCORRECT MEDIATOR EVALUATIONS

Even assuming that mediators could be governed by and held to appropriate standards when they evaluate, growing concerns about the quality of justice that disputants receive when they are diverted from courts into private alternative dispute resolution (ADR) processes[28] argue for leaving evaluation to adversarial processes where due process protections are in place. In the courts, disputants can appeal decisions they feel are wrong. In arbitration, disputants pick arbitrators based on the arbitrator's substantive expertise or wisdom and consciously waive the right to appeal.

In mediation, little protection exists from a mediator's inadequately informed opinion. Confidentiality statutes, rules, and agreements keep sessions private.[29] Quasi-judicial immunity in some cases can shield mediators from liability for careless opinions.[30] The mediator's opinion that one of the parties should buy a carpet to lessen the impact of sounds heard by a neighbor or that one of the parties does not have standing to bring a particular claim in court carries enormous weight.[31] Mediators are not in the best position to make those sorts of evaluations because, if they are doing their facilitative job, they have not completed the necessary preliminary tasks of an evaluator. Additionally, unless a mediator has separate training as a judge, arbitrator, or neutral evaluator, he or she may not be competent to serve as an evaluator. Service as a mediator does not qualify a mediator to be a judge any more than service as a judge qualifies a judge to mediate.

VI. EVALUATION ABOUNDS: THE DISPUTING WORLD NEEDS ALTERNATIVE PARADIGMS

The processes of litigation, "rent-a-judge,"[32] arbitration,[33] early neutral evaluation,[34] and summary jury trial[35] are all available for parties who want opinions or decisions. Evaluative models and service providers abound. We need a genuine alternative to the adversarial paradigm of disputants who fight and a neutral who assesses.

The collaborative paradigm of mediation, in which mediator evaluation does not play a part, offers a dispute resolution process through which parties are taught how to resolve their own disputes, listen to each other differently, broaden their own capacities for understanding and collaboration, and create resolutions that build relationships, generate more harmony, and are "win-win."[36] The lesson, "Give a man a fish and you feed him for a day, teach him to fish and you feed him for a lifetime," highlights the importance of teaching people how to solve their own dilemmas.

In the corporate world, phalanges of consultants assist in promoting creative problem-solving and building teams capable of successful collaboration. Similarly, the legal community needs a model from among the array of dispute resolution processes that will assist parties to evolve in their understandings, relationships, and arrangements, using the opportunity represented by conflict situations.

Mediation has the potential of being shifted towards an adversarial framework in which mediators "trash and bash"[37] to get parties to settle. They "trash" the parties' cases, predicting loss and risk if litigation is pursued.[38] They "bash" settlement proposals that the other side will not accept.[39] We lose a great deal if mediation becomes a mere adjunct of the adversarial norm. Having mediators use evaluation as a technique to get movement takes us in that direction.

VII. MEDIATOR EVALUATION DETRACTS FROM THE FOCUS ON PARTY RESPONSIBILITY FOR CRITICAL EVALUATION, RE- EVALUATION AND CREATIVE PROBLEM- SOLVING

If Einstein's insight is true that "[t]he significant problems we face today cannot be solved at the same level of thinking we were at when we created them,"[40] then we, as a society, are called on to nurture ways to achieve higher levels of thinking and creativity. Mediation is the one dispute resolution process in which the neutral's role is to assist the parties to collaborate creatively and resolve the issues they face.[41]

Frequently, for the individuals, communities, or institutions involved, conflicts represent true crises, holding the potential for doing extreme harm and, at the same time, holding the potential for creative change and restructuring. The mediator's task of elevating the dialogue from recriminations and blame to the generation of possibilities and breakthrough ideas is a task we are just beginning to understand. If we allow mediation and mediators to slip into the comfortable (because it is the norm) adversarial mind-set of evaluation, we kill the turbo-thrust of the jet engine of idea generation.[42] So-called "evaluative mediation" pulls mediation away from creativity and into the adversarial frame.[43] If we are to continue to survive and evolve as a species, we need to nurture the processes that tap our affinity to create and imagine.[44]

VIII. EVALUATION CAN STOP NEGOTIATION

When mediators provide opinions, the opinions have consequences. An unfavorable opinion can seriously disadvantage one of the parties. When a party disagrees with the unfavorable opinion, the party is likely to withdraw from the mediation, believing that the mediator has "sided" with the other party. On the other hand, a party advantaged by a favorable opinion may get locked into an unacceptable claim or position and negotiations may stop altogether.[45] Because mediators are charged with furthering negotiation, this result is undesirable.

The following incident illustrates this problem. The general counsel of a large shipping company was called to a mediation session in Florida.[46] The mediation involved a multi-million dollar dispute with a union, and the general counsel went to Florida wanting to settle the matter.[47] During the mediation, in a joint session, the mediator urged the company to be more flexible because the business did not have a chance of winning on appeal.[48] That evaluation shut down the negotiations by freezing the union representatives into their position.[49] Several years and hundreds of thousands of dollars later, the company won a complete victory in court that was affirmed on appeal.[50] Mediator behavior should not cause such pyrrhic (lose-lose) victories.

Of course, when one side has an unrealistic assessment of its case, a different impediment to negotiation is present. In such cases, mediators should encourage re-evaluation by enabling each side to present its best case and strongest arguments to the other side, encouraging the parties to get professional advice, questioning conclusions of the parties, and urging a neutral evaluation to break a stalemate.[51]

IX. A UNIFORM UNDERSTANDING OF MEDIATION IS CRITICAL TO THE DEVELOPMENT OF THE FIELD[52]

A recently completed two-year-long study and report on court-referred ADR in New York State, commissioned by New York Court of Appeals Chief Judge Judith S. Kaye, concluded that a critical need exists for uniformity of standards and definitions for alternative dispute resolution processes.[53] The report specifically noted that "mediation" is a term used in an "extraordinary variety of ways."[54] To address this problem, the report recommends the promulgation of statewide standards[55] and the subscription of neutrals to a specific code of ethics.[56] In discussing the confusion of terms and labels, the report notes that "[b]lurring the lines between mediation, neutral evaluation and even arbitration can have deleterious consequences."[57] The consequences include parties who do not know what to expect and neutrals who do not understand what constitutes good practice.[58] Interestingly, the body of the report includes a discussion of training standards that states: "mediators do not advise litigants on the law or likely court outcomes . . . ."[59]

When attorneys advise clients about the advantages and disadvantages of mediation, when courts and institutions create mediation programs and panels of mediators, when consumers go to the Yellow Pages to find a mediator, they should know what they are getting. They should have a clear understanding of the goals of the process and the tasks the neutral will perform.[60]

In an article criticizing ADR, Noreen Connell, former president of the New York State chapter of the National Organization for Women, describes a case in which a married couple elects to mediate their divorce to avoid dissipating marital assets in litigation:

At the sessions, the mediator, who is a woman, echoes the husband's complaints that the wife is "too angry and too suspicious" when he claims that he no longer has a pension and that he has lost the credit card records. The wife is told her complaintss [sic] about not getting enough money to pay the mortgage since her husband moved out of the house are emotionally damaging to their son and that responsible parents choose joint custody.[61]
Ms. Connell's conclusion about mediation is contained in the article's title, "Beware of Alternative Dispute Resolution." Another conclusion based on the same story is that the mediator was so busy evaluating who was right and wrong and what the outcome should be that the mediator did not mediate at all. The mediation community must make the meaning of mediation so clear that, in her next article, Ms. Connell will criticize the mediator involved in this case, not the mediation process itself.

X. MIXED PROCESSES CAN BE USEFUL, BUT CALL THEM WHAT THEY ARE!

Parties sometimes request that neutrals assume a variety of roles. "Mixed processes" abound: med-arb, arb-med,[62] mini-trials,[63] summary jury trials, and mediation and neutral evaluation.[64] These mixed processes can address particular needs of a situation and can be very helpful.

Mediators are not foreclosed from engaging in some other process or helping parties design a mixed process. Whatever the service being provided, however, it should be requested by the parties and accurately labeled. When a process is "mixed" and the neutral has multiple roles, he or she is bound by more than one code of ethics and is charged with separate goals and tasks. A properly labeled process—or, conversely, a label that has a clear meaning—promotes integrity, disputant satisfaction, and uniform practice.

Mediators who regularly give case assessments and expert opinions should continue those practices only if they are requested by the parties, properly advertised, and accurately labeled.

Driving out of Manhattan on the Henry Hudson Parkway, a major route to New Jersey, a large billboard pictures David Letterman proclaiming: "Attention motorists: NJ is closed." I can imagine David Letterman with his huge smile announcing "Attention disputants: YOUR MEDIATOR MAY EVALUATE." It should seem equally absurd.