Mediation
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A Mediator Should Never Offer Evaluations? Some LegalPsychological Perspectives By Luke Gibbons Jr., LL.B (Dub.) (aur.num.), BCL (Oxon) (Dist.) (Hon. Sch.), PhD Candidate (Dub.) Introduction – ‘Never Say Never’ There are many accepted key principles of mediation such as mediator neutrality, impartiality, party self-determination, and autonomy. One could argue that theoretically a mediator offering substantive evaluations to the parties would contravene these general principles. However, as Frank Sander, Professor of Law at Harvard outlines, there is no overarching “mediation” that fits as a “forum to the fuss” in every dispute. Although pure mediation advocates argue that mediation should be wholly facilitative to avoid these key principles being undermined, others proclaim that evaluative mediation may be favoured. This article argues that this dichotomy is not only unhelpful but also inaccurate. This is grounded in the argument in Leonard Riskin’s seminal paper that these forms of mediation are not mutually exclusive in that both approaches exist on a “spectrum.” Thus, while offering evaluations comes with dangers and should be generally cautioned, this article argues that a mediator should offer evaluations when a case so requires. What Is a Mediator’s Evaluation? Before discussing the merits and dangers of a mediator offering evaluations, it is prudent to outline what form an evaluation may take. In basic terms, a substantive evaluation is the mediator offering some form of opinion on each party’s case. As Zena Zumeta observes, a mediator’s evaluations may include pointing out strengths and weaknesses of each party’s argument and giving an opinion on what a court may decide if the parties litigated the dispute. This usually occurs in what has been termed “shuttle diplomacy,” where the mediator meets in separate rooms with each party. However, as shall be discussed, evaluations come with both dangers and benefits in assisting the parties to come to an integrative agreement and should only be used as a case so requires within the facilitative regime. Dangers of Evaluations (a) Mediator’s Neutrality and Impartiality at Risk The maintenance of mediator neutrality and impartiality is important. This neutrality encourages parties to articulate interests accurately and facilitates creative problem solving. This is because parties do not perceive a mediator as competitively biassed unlike their counterparties. It is arguable that the effectiveness of this is due to the trust vested in the mediator by virtue of these attributes.
However, if a mediator evaluates, this trust and thus the facilitative role of the mediator may be undermined. This is submitted as an evaluation in actuality will probably favour one party over another. Further, even if it does not, due to bounded rationality and self-serving bias, an evaluation will likely be perceived as favouring one’s counterpart anyhow. This is made even more likely, as pursuant to Schulz von Thun’s model there are four sides to every message, so the mediator may intend an evaluation on one frequency, but this may be interpreted on a different frequency. For instance, applying Horst Eidenmueller’s “Problem, People, Process Model” (PPP Model), a mediator may intend a wholly objective evaluation on the problem level as to factual
