Hays & Clark: Mediators as evaluators — Weighing risks in resolutions

By Thomas C. Hays and Patrick Clark

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 or her evaluation is broached by one of the parties.

The obvious risk is that once a mediator expresses his or 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 1) comparing anticipated litigation expenses; 2) analyzing the risk; 3) presenting a bracket; and 4) suggesting a mediator’s proposal.

The Model Standards afford ethical room for mediators to evaluate cases. The Model Rules state:

A. A mediator shall conduct a mediation based on the principle of party self-determination …

B. A mediator shall conduct a mediation in an impartial manner …

1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.

2. A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices. Model Standards of Conduct for Mediators S. I(A), II(B) (2005).

When an impasse occurs, a mediator must first obtain the consent of both parties to inform them of the mediator’s role as case evaluator. In light of the Model Standards, parties’ self-determination is of utmost importance, but when appropriate, a mediator should inform the parties of consulting with professionals to make informed choices. In this case, the parties could consult with the mediator, as the professional evaluator, to help facilitate the parties’ informed choices.

If an evaluation is insisted upon and consent has been obtained, the mediator should meet separately with attorneys outside the presence of the clients to independently inform the attorneys of the case evaluation. This gives the mediator and attorneys the opportunity to explain the evaluation without upsetting the clients. If a mediator were to evaluate the case in front of the attorney and client without first consulting with the attorney separately, the mediator may risk derailing the mediation by giving the client a false impression of the outcome of the case. By meeting separately, the mediator leaves attorneys to consult with their clients about the evaluation so that the mediation can continue steadily.

A mediator can take passive steps to refocus the situation to challenge the parties’ positions without providing input. First, and if agreed to by the parties, the mediator should present a global summary, which provides an overarching view that tracks where the parties are and focuses squarely where the parties disagree. John Settle, “Tips and Techniques for Helping Parties Move Ahead and Overcome Roadblocks,” www.americanbar.org/groups/dispute_resolution/resources/practice-tips/.

Once framed, the mediator can pursue role reversals, depending on the resiliency of parties to engage in such conduct. For example, the mediator may ask, “If you were [the other party], why do you think your proposal [would or wouldn’t] be workable?” Id. Mediators could more firmly play devil’s advocate and argue against the parties individually without providing an opinion on the case. Id. This reflective tactic will push parties to consider their own and each other’s positions in hopes of pursuing a quicker resolution.

If mediation remains at an impasse, mediators may take on a semi-evaluative role of the present case. The evaluation should be requested and agreed to by the parties in advance, with additional care taken by the mediator. If possible, the mediator should use an objective standard that both parties can agree to and comfortably measure the dispute. An objective, agreeable standard maintains the mediator’s actual and perceived impartiality.

As a mediation tactic, mediators will remind parties of the risks of litigation to coax parties into mediation, but that prospect may fall on deaf ears. That prospect can be made a reality by adding substance to the vague warning. For instance, when evaluating the case, a mediator should make the risks more apparent by informing the parties of litigation risks based on the circumstances of the parties’ dispute. This way, parties can better understand the risks of litigation and the merits of the case to be drawn into settling the case.

These evaluative techniques should be handled with due care when utilized. Always remember that each mediation is different, so the same set of techniques will not work for every single case.•

• Thomas C. Hays is a partner and experienced litigator and mediator at Lewis Wagner LLP in Indianapolis. Patrick Clark is a third-year student at Indiana University McKinney School of Law and a 2019 Fellow in the Program on Law and State Government. He was a 2019 summer associate at Lewis Wagner and is currently a judicial extern for the U.S. Court for the Southern District of Indiana.