This article was co-authored by Patrick Clark, a 2019 law clerk at Lewis Wagner.
Mediators must always remain independent in resolving disputes between widely disparate views and interests. However, mediators evaluate cases to some degree when facilitating settlement discussions between parties. Critics have highlighted the inherent danger of the mediator’s role as a case evaluator: not only are the roles of an evaluator and a facilitator at odds ethically, Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 Fla. St. U. L. Rev. 936, 940-941 (1997), they may completely thwart negotiations, Id. at 945.
Mediators who evaluate cases often carry risks. The Model Standards provide:
“A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.
B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.”
Model Standards of Conduct for Mediators S. II(A)-(B) (2005).
The risks associated with a mediator evaluating a case threatens the perceived and entrenched neutral position of a mediator. In some capacity, the mediator will have to choose sides, Christine E. Devine, Maximizing Mediation Success Going Beyond the Requirements of the Model Standards, 37 Am. Bankr. Inst. J. 100, 103 (Apr. 2018), even if the case evaluation is conducted objectively.
The mediator must tread lightly when the issue of his\her evaluation is broached by one of the parties.
The obvious risk is that once a mediator expresses his\her opinion, it may become the gold standard for that party for the rest of the negotiations.
The case may very well have been able to settle for a figure much higher or lower than what the mediator has expressed.
Rather than offer the mediator’s evaluation when asked, it would be best to utilize some of the impasse breaking tactics such as comparing 1) anticipated litigation expenses; 2) analyzing the risk; 3) presenting a bracket; and 4) suggesting a mediator’s proposal.
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