Examples of “an alternative dispute resolution process” include, “early neutral evaluation, mediation, minitrial, and arbitration.”
–28 U.S.C. § 651(a) (from the Alternative Dispute Resolution Act of 1998).
Over time, the word “mediation” has come to be a shorthand term encompassing all non-binding alternative dispute resolution processes. And the result is often a confusion of roles.
An attorney might say, for example, “We want the mediator to tell one of the parties that their position is without merit.”
[Editorial Note. Such a statement often needs to be translated like this: “I want the mediator to tell the other side that their position isn’t worth crap!”]
The problem with such a statement [aside from the translation] is this distinction:
–the attorney is combining two different roles into one. The attorney is trying to impose upon the mediator a role and function that belongs to an early neutral evaluator – not to a mediator.
The attorney’s response to such a distinction might be, “So what?”
–A mediator’s responsibility is to maintain a position of neutrality throughout the mediation process: from the very beginning to the very end. The purpose of mediator neutrality is to bridge the gap between the parties: to bring them closer together. And any failure to maintain neutrality is a fundamental breach of the mediator’s professional responsibilities.
–An early neutral evaluator also has a duty to begin the evaluation process as a neutral: there is no place for a conflict of interest—none! However, as the evaluation process moves along and the evaluator decides upon a set of findings and conclusions, the aura of neutrality evaporates. Conflicts of interest are still absent, but the evaluator’s decision will almost always take the side of one disputing party over the other. And once the evaluator’s decision is communicated to the parties, any sense of continued neutrality is gone.
So, it’s extremely important that the roles of, and distinctions between, a mediator and an early neutral evaluator are understood and maintained. The success or failure of a mediation effort may depend upon it.
Here are two procedural suggestions.
A Two-Neutrals Suggestion:
Whenever disputing parties want to mediate – and also want a neutral evaluation – they should simply ask the court to appoint two separate neutrals: both a mediator and an early neutral evaluator.
Then, each of these two separate neutrals could perform their separate mediator and evaluator roles. Procedurally, the mediator could coordinate both the mediation and evaluation processes and the timing of each. Or both could attend the mediation session together and fulfill their respective roles separately-but-concurrently.
Presumably, many sitting judges would be more than happy to perform the evaluation function. This would be great because they’d be highly proficient and effective in that role. Also, a sitting Federal judge would perform an evaluator role for no-extra-charge and would be a cost-neutral addition.
Such a two-neutrals approach would have the benefits of:
–providing the evaluative function that many parties say they want; and
–maintaining the mediator’s neutrality throughout the mediation effort.
A Mid-Session Recess Suggestion:
Additionally, whenever a mediating party, during a mediation session, decides that he/she/it wants an evaluation of the merits of the case (instead of a mere mediator), the mediation session should recess immediately so that an early neutral evaluator can be appointed. The evaluator could then read the statements and documents already submitted to the mediator, discuss the issues with the parties if needed, and then issue an evaluation. Whereupon, the mediation session could resume again.
The roles of a mediator and of an early neutral evaluator are separate and different and have differing purposes.
Unfortunately, the two roles are commonly confused and often lumped together under the title of “mediator.” When that happens, expectations of the disputing parties on what a mediator should be doing get out of whack. And mediators are, often, pressured into compromising their neutrality by delving into the function of an early neutral evaluator.
Such a compromise, whenever it occurs, is unfortunate . . . and is, often, ineffective and counterproductive.
What do you think about this?
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Neutral evaluation is not properly understood or practiced in any systematic approach. One reason is that a neutral evaluator is asked to weigh in on the factual and legal issues, when that is the role of an arbitrator or judge.
Of course the neutral evaluator must be as neutral and unbiased as a mediator must be. However, the role of the neutral evaluator has two parts: 1. to press each party to present a coherent set of relevant facts, identify those facts which may be in dispute, and to understand what facts or interpretations of the facts the dispute really involves; and 2. to insure that the parties understand the application of the law to each of the sets of facts the parties can persuasively present.
The neutral evaluator must openly explore, with the parties, how difficult it may be to prove or accept some facts urged by one party, and disputed or actually contradicted by the other, and help the parties understand the basis for that evaluation. Then, the evaluator must help the parties see how or whether relevant law applies to each possible set of likely facts. Evaluating the relative likelihood of some facts being accepted or proved, and the application of sometimes ambiguous principles of law, should help parties factor into their calculations of achieving complete success (in some contexts called “BATNA”), as compared to an outcome in which that party’s desired result is substantially defeated or frustrated (sometimes called “WATNA”).
An experienced and skilled neutral evaluator can gain the parties’ trust that s/he is still being neutral, even if skeptical about the persuasiveness or credibility of any fact presentation or explication of applicable law. Based on the indeterminate status of the facts and law during the neutral evaluation, the parties may, with the help of the evaluator, achieve a resolution of the issues (even a compromise) which could not have been achieved if there were an arbitration or adjudication of the dispute, or the “bottom-lime evaluation” of the “odds” of the respective parties winning or losing; and by how much.—Eli Uncyk
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Thanks, Eli, for your thoughts and wisdom on this. Much appreciated!