Mediators Using Non-binding Evaluations and Making Settlement Proposals

The IMI/CCA/Strauss Institute Mixed Mode Taskforce have just published a series of articles on mixed mode dispute resolution in the New York Dispute Resolution Lawyer. These articles are reprinted with permission. The below article was produced by Working Group 3, and authored by Véronique Fraser and Kun Fan.


Working Group 3 (WG3) of the Task Force explores the topic of mediators using non-binding evaluations and making settlement proposals as a form of mixed mode dispute resolution. Mediators employing such techniques might express their assessment of the strength of a party’s case, predict the outcome of any arbitration or litigation that might follow the mediation or, at the parties’ request, make an outright suggestion of how the parties could settle the dispute.

I. Different Perceptions Due to Cultural Impact and Ethical Considerations

Mediators using non-binding evaluations and making settlement proposals is one of the most common
forms of mixed mode practice. This is also an area where there appears to be considerable differences due to cultural impact and ethical considerations.

Conciliation vs. mediation: While some jurisdictions maintain a distinction between mediation and conciliation, with only conciliation involving evaluation or settlement proposal1 the two terms are often used interchangeably in many jurisdictions and contexts.2

Evaluation vs. facilitation: While “evaluation” is often considered the extent to which, in helping parties settle their dispute, the mediator tends to assess the strengths and weaknesses of a legal position or to predict outcomes in court; and “facilitation” means mediators only assisting the parties’ negotiations without evaluating. In practice, however, the line between facilitation and evaluation is less clear-cut. Evaluation could range from behavior that is principally facilitative (or, in other words “elicitative”3) to directive, that is, for example, asking questions to help the parties understand both sides’ legal positions and the consequences of non-settlement or helping the parties to evaluate proposals to assess the strengths and weaknesses of each side’s case or to predict outcomes of courts or other adjudicative processes.4 It is also common that, within a single mediation, mediators’ interventions move across the board from facilitation to evaluation and vice-versa as the mediation process evolves and in response to what is perceived to be needed to move the dispute closer to a resolution.5

ADR Continuum

WG3 recommends distinguishing mediation and conciliation for reasons that go beyond the terminology debates that we have been witnessing in the literature for several decades. Rather, dispute resolution processes can be seen as a continuum, where, on the left side, parties retain full self-determination regarding the process and the substance of the dispute and, on the right extreme, parties submit themselves to the authority of a third-party neutral, such as a judge (see Figure 1). In the dispute resolution continuum, non-evaluative mediation is closer to the left axis than evaluative mediation.

The concepts of “mediation” and “conciliation,” “facilitative” and “evaluative” are not meant to be applied rigidly, as they represent a continuum, rather than a static point, as illustrated by Leonard Riskin’s Old Grid (figure 2).6 The level of intervention of the neutral depends on the party expectation and process design. It is particularly important in cross-cultural contexts. The same term can mean different things for different people. Parties and neutrals should not assume that their expectations or perceptions are shared by the other side. It is crucial to communicate and share expectations in order to develop proper process design at the beginning of the process.

II. Recommendations of Working Group 3

Recommendation 1: Using WG3’s “Grid Regarding Party Autonomy in Mediation and Conciliation Process” for Process Design

In considering mediators’ use of non-binding evaluations and settlement proposals, WG3 suggests a shift in
focus from mediators’ orientations to the effects of mediators’ techniques on party autonomy regarding substance
and process.

We recommend using an adapted version of Riskin’s New New Grid to anchor party autonomy in mediation (Figure 3). WG3’s “Grid Regarding Party Autonomy in Mediation and Conciliation Process” can be a useful tool for a third-party neutral to help the parties decide the degree of self-determination that they can retain regarding norms setting and the substance of the dispute, as well as the process.

WG3’s “Grid Regarding Party Autonomy in Mediation and Conciliation Process” consists of two intersecting continuums, the horizontal axis represents party autonomy towards the substance or, more specifically, norms setting; the concepts of “self-determination” and “subjection” provides its anchors. The other deals with party autonomy regarding the process, and it runs from “self-determination” to “subjection.” When mediators use non-binding evaluations or make settlement proposals, they exercise a norms-setting role7 that affects, to a varying degree, the substance or the outcome of the dispute. Hence, parties subject themselves to the norms setting authority of the mediator. When norms setting is reserved to the parties, the mediator helps them identify the norms (whether legal, ethical, industrial, etc.) that will be used to arrive at the outcome. In such cases, parties retain full self-determination regarding norms setting and the substance or outcome of the dispute.

Recommendation 2: Adapting Neutrals’ Techniques to Parties’ Process Choices Regarding Process and Substance Autonomy

WG3 provides a taxonomy, based on WG3’s “Grid Regarding Party Autonomy in Mediation and Conciliation
Process,” of a range of evaluations that have been found to be used by neutrals across various cultures and sectors (see Table 1). On the vertical axis, this table illustrates six different types of evaluations (questions, educating, generating and enunciating rules and norms, assessments and opinions, developing proposals, predictions, pressing or persuading). The horizontal axis shows examples of techniques that can be used depending on the degree of self-determination that parties retain regarding the substance and the process. This taxonomy serves as a guide for the mediator to locate his or her interventions and understand their impact in terms of party autonomy regarding the process or the substance of the dispute. It also shows how a mediator can adapt his or her techniques depending upon the choices that parties have made during the process design phase.

When a mediator uses techniques of group A, he or she lets the parties arrive at a solution using the process they prefer and only guides them through the mediation. The mediator’s role is mainly to facilitate communication, a role that can be assimilated to a facilitative style of mediation. Tactics found under the umbrella of category B preserve the parties’ self-determination over the substance but allow the mediator to control the procedural aspects of the mediation, establish and propose process rules. In both categories A and B, as parties retain full self-determination regarding norm setting and the substance of the dispute, the mediator generally does not provide opinions, nor take position or make evaluations. It is, however, possible for the neutral to educate the disputants about bargaining processes and skills, approach each side, asking them to expose their risks, and bring in experts.

Categories C and D share several elements, in the sense that these techniques impact self-determination of the parties regarding substantive aspects of the dispute, notably the agreement itself. A mediator choosing to use this approach brings in his or her own opinions of the case, as well as external norms (legal, ethical, technical, etc.) in the process. According to this model, categories C and D are really similar regarding the techniques they comprise, but a distinction in practice if the parties have authorized the third party to take a directive role regarding the process. If that is the case, the techniques would be categorized under D. If the parties retain control over the process, the techniques would fall under C. In both categories C and D, as parties subject themselves to the norms setting authority of the mediator, mediators can use techniques such as developing proposals, predictions (when appropriate, providing one’s own opinion on the merits). The neutral can offer advice, make assessment regarding the process, make evaluations of an appropriate solution or range of options, provide a BATNA analysis, or offer other general opinions or evaluations. The neutral can provide advice and opinions regarding technical matters or substantive law. The mediator can also decide to involve an expert that will present his or her views and formulate evaluations that fall within the parties’ negotiating range.

Endnotes

  1. See, for instance, the Swiss Code of Civil Procedure (CPC) Part 2, Title 1 (Arts. 197 – 212) and Title 2 (Arts. 213–218). For a summary of the distinction between mediation and conciliation from a Swiss perspective, see Jeremy Lack, The New Swiss Rules of Commercial Mediation of the Swiss Chambers of Commerce and Industry: Possible Links to Arbitration, in New Developments in International Commercial Arbitration 2008 105, 106-109 (Christoph Müller & Antonio Rigozzi, eds., Schulthess, 2008).
  2. See, e.g., a note from UNCITRAL stating: In its previously adopted texts and relevant documents, UNCITRAL used the term “conciliation” with the understanding that the terms “conciliation” and “mediation” were interchangeable. In preparing this Model Law, the Commission decided to use the term “mediation” instead in an effort to adapt to the actual and practical use of the terms and with the expectation that this change will facilitate the promotion and heighten the visibility of the Model Law. This change in terminology does not have any substantive or conceptual implications. UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002), A/73/17, Annex II (31 July 2018), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/annex_ii.pdf.
  3. Leonard L. Riskin, Decision-making in Mediation: The New Old Grid and the New New Grid System, 79 Notre Dame L. Rev. 1, 20, 23 and 31 (2003).
  4. See Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negot. L. Rev. 7, 25-29 (1996).
  5. This reflects in large part the experience of WG3 members. See also supra note 3, p. 14-17.
  6. Supra note 4, p. 3. For a discussion regarding the continuum structure of Riskin’s Old Grid, see supra note 3 at 14-17.
  7. Ellen Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 Hastings L. J. 703, 707-756 (1997).
  8. Adapted from Jeremy Lack, Appropriate Dispute Resolution (ADR): The Spectrum of Hybrid Techniques Available to the Parties, in ADR in Business: Practice and Issues Across Countries and Cultures, Vol. II, 339, 353-57 (Arnold Ingen-Housz ed., Kluwer Law International, 2011); Manon Schonewille & Jeremy Lack, Mediation in the European Union and Abroad: 60 States Divided by a Common Word? in The Variegated Landscape of Mediation: A Comparative Study of Mediation Regulation and Practices in Europe and the World, 19, 25-33 (Manon Schonewille & Fred Schonewille, ed., Eleven International Publishing, 2014); Véronique Fraser & Sèdjro Hountohotegbè, Process and Substance Self-Determination or Subjection: A New Frame of Reference for Defining Mediators’ and Conciliators’ Interventions (GPRD Research Paper No. 2020/1) (on file with authors).

WG3 is co-chaired by Veronique Fraser and Kun Fan. For a full list of WG3 members, go to https://imimediation.org/mmtf.
Veroniqe Fraser is Vice-Dean Delegated for Strategic Development and Associate Professor, Faculty of Law, University of Sherbrooke (Canada), an accredited mediator (IMAQ) and lawyer (Quebec and Ontario Bars). Kun Fan is Associate Professor, University of New South Wales Faculty of Law and Justice; member of the Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre, an accrediated mediator (HKMAAL), arbitrator, and domain names panelist and is admitted to the New York Bar. The co-chairs would like to thank Emile Chamberland for his excellent research work and tireless efforts, as well as Rutger Metsch for his assistance, and the members of the Working Group and the Executive Committee for their valuable inputs. Any errors and omissions are purely ours.

This article is reprinted with permission from: New York Dispute Resolution Lawyer, 2021, Vol. 14, No. 1, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

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