How, (i) Early Neutral Evaluation is Tricky, and (ii) Neutral Mediators Assist Parties in Evaluation

A place for contemplation and evaluation

By Donald L. Swanson

The problem with early neutral evaluation is this: it’s a prediction.

An early neutral evaluator is an expert, who is trying to predict what a judge, jury or appellate court will decide about the merits of a dispute.

Early Neutral Evaluation – A Tricky Business

Prognostication is always a tricky business.  And attempting an early neutral evaluation of the merits of a lawsuit is no exception.  Here are some adages on the subject of predicting future developments:

–“Prediction is difficult, especially if it’s about the future” (from Nils Bohr, Nobel laureate in physics).

–“Those who have knowledge, don’t predict. Those who predict, don’t have knowledge” (from Lao Tzu, ancient Chinese poet).

–“I always avoid prophesying beforehand because it is much better to prophesy after the event has already taken place” (from Winston Churchill).

–“Prophesy is a good line of business, but it is full of risks” (from Mark Twain).

–“Forecasting is the art of saying what will happen, and then explaining why it didn’t” (Anonymous).

An Illustration

Whenever I’m tempted to predict what a judge will decide in a particular case, I remember a series of events from many years ago that went something like this:

–A bankruptcy judge rules in favor of one party, based upon a finding that “XYZ is clearly true.” The losing party appeals.

–The bankruptcy appellate panel affirms, based upon a finding that “XYZ is clearly true.” The losing party appeals, again.

–At oral argument before the circuit court of appeals, the first question from a circuit judge begins with this comment: “The problem with this case is that XYZ is NOT true.”

So . . . rewind, hypothetically, to an early neutral evaluation in the same case before trial. In light of the judicial actions noted above, what could an early neutral evaluator possibly say or predict that would be beneficial to anyone in this dispute? Perhaps the evaluator could say the case is a toss-up? But neither the trial judge nor the BAP judges – nor the circuit judge, for that matter – view the case as a toss-up.

I’d love to see some academic studies on cases in which, (i) a mediator or evaluator provides an explicit and direct evaluation, but (ii) settlement does not occur, and the case is decided by a judge or jury or appellate court. I’d like to know how accurate the pre-trial evaluations prove to be in light of ultimate results. And, by the way, I have no prediction on what such a study might show.

Mediator Actions – Neutrality While Assisting in Evaluations

Mediators can help parties evaluate the merits of their own case, without actually providing an evaluation. And this is consistent with neutrality. For example:

–A mediator can maintain neutrality, while helping each parties recognize risks, with one or more of the following comments:

“I know you feel strongly about the merits of your case. But the other party expresses the same strength of feeling about the merits of their case. And you can’t both be right. Here’s what they are saying about difficulties for your case: ____________. What’s your response to that?”

“Trials are a high-risk proposition: it’s a ‘box of chocolates’ sort of thing. You can be prepared and confident, but once you walk in the courthouse door for trial, it’s the mother-of-all play-it-by-ears. You never know what will happen.”

“Bad things—and other surprises—can and do happen. As a litigator, I’ve been surprised [even shocked] many times at litigation results, in both good and bad ways. What would be the effect of a bad surprise for you in this case?”

“You express confidence that the Judge will rule in your favor on this. But what if the Judge ‘gets it wrong’ from your perspective? Judges are often wrong, and judicial rulings get reversed on appeal all the time. And what might the ramifications be for you in this case, if the judge [from your perspective] gets it wrong?”

–A factual comment by the mediator about prior experiences can still be neutral. Such a comment is not an evaluation – it is an observation of fact. For example, a mediator might say to a party in caucus, and still remain neutral:

“I’ve reviewed hundreds of cases like this, but I’ve never seen one with the result you are seeking. Your case might be different or an exception, but I haven’t seen it.”

“One of the cases you are relying upon has been overruled.”

“I’ve heard this judge say from the bench at least a dozen times: ‘_______.’”

–An unusual (but not rare) circumstance is this: an attorney’s client holds an unrealistic view of the merits and risks of the case and won’t listen to the attorney’s counsel. So the attorney asks the mediator to help the client develop a more-accurate understanding of the case.

Such a circumstance is, I believe, an exception to the usual no-evaluation rule for mediators. That’s because the mediator is supporting the attorney and not promoting a contrary position, and the mediator is doing so in private. That’s still a posture of neutrality.

An Evaluation

By contrast, a statement of evaluation looks like this:

“I believe you will lose on that argument, and you should adjust your settlement position accordingly.”

When a mediator gives such an evaluation on the merits of the dispute, a common reaction (particularly when the evaluation is unsolicited) from parties on the negative-side of the evaluation is something like this:

–“Who do you think you are, god or something?”


Early neutral evaluators face limitations, because their evaluations are nothing more than predictions of what a judge, jury or appellate court will do.

Mediators, on the other hand, can maintain neutrality, while providing assistance, in helping the parties do their own case evaluations.

–The latter, I suggest, is better than the former: by far!

**  If you find this article of value, please feel free to share.  If you’d like to discuss, let me know.

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