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.