So . . . What’s a Mediator to Do?

By Donald L. Swanson

“The mediator is a nice guy. But he needed to be tougher. He needed to pound harder on the other side . . . and on us . . . to get the case settled.”

–A disappointed litigator explaining why a case did not settle in mediation.

There are differing mediation styles.  But most everyone agrees on one thing: the mediator must be neutral.  Yet there are expectations and demands for something more from mediators: to put pressure on the parties and to depart from a non-evaluative style of mediation.

A Dilemma

A well-seasoned mediator of bankruptcy disputes, Louis Kornreich, identifies a neutrality dilemma for mediators with these observations in a recent issue of the American Bankruptcy Institute Journal:

–Many judges, lawyers and parties want mediators “who are willing to be more than neutral facilitators.”

–“[I]n my experience, participants in bankruptcy mediation frequently expect the mediator to point the parties in the ‘right’ direction.”

–“The reality is this: We might be witnessing a paradigm shift. Mediation has been redefined in bankruptcy practice to encompass more than neutral facilitation; mediation has become a synonym for the full range of facilitative, evaluative and directive ADR activities.”

–When one party is holding-out in a multi-party mediation, the group “will expect the mediator to nudge or prod the hold-out. As the day progresses, pressure on the mediator mounts. . . . it gets dicey when everyone, including the recalcitrant party, asks for a case evaluation, or when all parties ask for help in fashioning a result.”

More Difficulty

Adding to the difficulty-for-mediators is a report (published by Profs. Bobbi McAdoo & Nancy A. Welsh in the Winter 2005 issue of the Nevada Law Journal) on neutrality-type perceptions of parties who participate in mediation. Here are some of the seemingly-inconsistent findings:

–“[P]arties seem to judge the process of court-connected mediation as fairer when mediators evaluate the merits of cases. This reaction suggests that like judges and attorneys, parties who are involved in court-connected procedures prefer and appreciate mediators’ help in achieving outcomes that are consistent with the rule of law.”

–“When mediators recommend a particular settlement, parties are more likely to feel pressured to settle and less likely to perceive the process as fair.”

–Complaints about mediators often involve “allegations that mediators behaved in a coercive manner . . . thus undermining the neutrality, dignity and mutual respect that parties expected to find in the mediation process.”

–“Court-connected mediation produces fair outcomes and, especially when mediators evaluate parties’ cases, provides some reassurance that outcomes are consistent with the rule of law.”

–The goal of procedural justice “seems to be achieved by court-connected mediation — except when mediators engage in aggressively evaluative behaviors, [etc.].“

So . . . what’s a mediator to do?

–Become evaluative – but not too much?

–Pound harder on the mediating parties – but not too much?

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