ABI’s “Bankruptcy Mediation” Book: Evaluative Mediation (Part 1)

Bankruptcy Mediation-FINAL-SMBy: Donald L. Swanson 

When a mediating party and counsel say to the mediator:

Just give us your evaluation!

What they are actually saying is:

Just confirm that you agree with my side.”

Prof. Elayne E. Greenberg of St. John’s University School of Law 

This observation appears in the “Bankruptcy Mediation” book recently published by the American Bankruptcy Institute.

I laughed out loud upon reading this observation, because I’ve always sensed it to be true — but I’d never be able to articulate it.

I can think of a possible exception or two — maybe. But, otherwise, this observation is dead-on.

FullSizeRenderProf. Greenberg writes this observation in a chapter titled, “What They Really Want: Bringing Objective Evaluations into Mediation.”

Here’s a hypothetical she addresses:

“The mediation is at an impasse, and the parties turn to you, their esteemed mediator, to provide them with an evaluation.”
–“How flattering it is to have respected lawyers and experienced business people turn to you, their bankruptcy mediator, and ask your opinion of their case.”
–You may believe that your “well-reasoned analysis of the bankruptcy dispute at hand could resolve the matter.”
–“Besides, if parties are asking for an evaluation and you comply with that request, aren’t you just honoring party self-determination?”

Prof. Greenberg discusses rules of professional responsibility and practical considerations relating to this hypothetical.

She also talks about strategies for bringing evaluation into the mediation.

And her suggestions for dealing with “dueling experts” are most helpful!

Prof. Greenberg concludes her chapter with this thought on mediators dealing with evaluation requests:

“Now is your time to demonstrate the depth of your mediation skills and the anchoring of your ethics.”

I commend Prof. Greenberg’s chapter in this book to your consideration. It’s well worth the read!

The book can be ordered here.

Part Two of this “Bankruptcy Mediation” book series is here.

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