A Mediator Should Never Offer Evaluations? Some LegalPsychological Perspectives

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

information, but this may be interpreted as a subjective judgement on the people level and the relationship between the parties.

This possible perception of bias and favouritism as opposed to impartiality can erode the parties’ trust in the mediator and can stifle open information flow. Thus, the chance of a mediator successfully facilitating a mutually beneficial, value creating, integrative agreement is diminished. Moreover, this may escalate conflict akin to Glasl’s stairs as communication may break down in response to loss of trust and a possible “win-win” negotiation may metamorphose into a “lose-lose” scenario. The end result of this scenario is a non-agreement in that as Lela Love argues evaluations may lead to parties withdrawing entirely.

(b) Undermining Self – Determination + Creating an Adversarial Frame

Mediation’s popularity is attributable to its focus on party autonomy in reaching an agreement as opposed to imposed judgement by the courts. Thus, anything that impinges upon party self – determination may be argued as potentially undermining the merits of mediation as opposed to adversarial proceedings.

By offering evaluations a mediator could potentially impede upon this benefit by, as Lela Love outlines, “perpetuating …an adversarial climate.” This may lead to parties becoming positioned and focusing on rights as opposed to an interest-based discussion which mediation seeks to facilitate. If parties realise they are subject to evaluation, they will most probably become competitively biassed and seek to illustrate their “case” to reflect its strengths. This may accumulate in parties hiding potentially valuable information from a mediator which could have facilitated creative integrative concessions. This would be unfortunate as parties tend to honour agreements that are their own creation as opposed to another’s suggestion.

Furthermore, in potentially creating this adversarial environment a mediator may ironically entrench the negotiator’s dilemma in that by hardening their positions, conflict escalation may not only ensue, but parties may adopt value claiming strategies making an integrative agreement less likely.

(c) Creating an Unhelpful Reference Point

From the literature it is apparent that the timing of evaluations is imperative for such to be successful. If an evaluation is given too early and bias is perceived by the parties, evaluations may erode trust in the mediator from the outset and create a further barrier to settlement. However, if given towards the end with the consent of the parties or at their request, an evaluation may be more effective as trust has previously been secured.

Adding to this literature, this author argues that if evaluations are given too early, they may create an early reference point between the parties which may impede the bargaining process. What is meant by this is, as Dan Ariely explains in his book Predictably Irrational, people make choices in relative terms with simple comparisons preferred due to this cognition requiring less effort. This is termed System 1 thinking. Therefore, an early substantive evaluation from the mediator may act as a reference point from which all subsequent offers and possible agreements between the parties are adjudged.

This is akin to the anchoring effect of a first offer by a party to a negotiation. The anchoring effect of the first offer grounds as a reference point from which all counteroffers are adjudged. There is evidenced success of the anchoring effect in the literature even when employed by a counterpart in the face of perceived competitive bias. Thus, it is argued that as a mediator is perceived as less competitively biassed due to neutrality, the comparative reference point and induced System 1 thinking of a mediator’s evaluation is even more likely to occur. However, if counteroffers are less favourable than the initial evaluation, negotiations between the

parties will likely break down as both will feel like losers in the win–lose frame this creates. Conversely, if the counteroffers are more favourable than an initial evaluation an integrative agreement may be made more likely as both parties may feel like winners. Thus, offering early evaluations may act as a favourable and unfavourable reference point depending on how the mediation proceeds.

Justifications of Evaluations (a) Addressing Selective Perception

Parties often overestimate their chance of success in court as their BATNA (Best Alternative to a Negotiated Agreement). As Max Bazerman in his book Negotiation Genius outlines, this can be attributed to selective perception as people form perceptions quickly and ignore information that contradicts their views. This can impact the chances of reaching an agreement that would potentially be more rational than litigation.

By providing evaluations of the BATNA of successful litigation, a mediator may address these misjudgments. As the mediator is seen as neutral, this may cause the party to re-evaluate their position and engage collaboratively as the benefits of a mediated agreement as opposed to litigation may become apparent. However, as people are not hyper-rational, a party may be so entrenched in their views that they see this as an attempt at manipulation in favour of the other party. Thus, the success of providing such an evaluation is both fact specific and dependent on the mediator having the requisite legal knowledge to demonstrate their case.

(b) Satisfying Other Psychological Needs

Evaluations may also satisfy a party’s psychological need for the experience of a day in court, in presenting a case before a neutral. This may provide the necessary phycological cover to eventually settle. Furthermore, an evaluation may provide those accountable to superiors a basis for agreeing to settle. This is argued as a justification for settling is readily ascertainable through being able to point to a neutral evaluation. For instance, a junior associate accountable to a partner at a firm might be resistant to settle on non-favourable terms. However, if they can defer to an experienced mediator’s assessment that outlined litigation would be less successful, consideration of the settlement may be more likely. This takes advantage of heuristics, in that as Dan Ariely outlines, people prefer readily justifiable choices. This is a phycological short that is often accentuated by the need for justification to a superior. Thus, in contrast to the above discussion on reference points, taking advantage of this heuristic may actually encourage settlement.

(c) Neutrality Not Always Undermined

Some evaluations not only do not impact neutrality or the perception thereof, but may also be a necessity even in facilitative mediations. This is argued as a mediator almost invariably offers implicit evaluations as a process manager by outlining the order of issues to be covered and how much time to devote to each. In so doing a mediator even in a purely facilitative role implicitly offers some evaluations on issue importance without tainting the parties’ perception of neutrality through framing the discussion around key areas.

Moreover, a valid argument may be made that evaluative mediation may be perceived as more neutral as through dealing with the issues in an open manner parties may have more confidence that a mediator is fair. However, for this argument to hold, not only would a mediator have to offer evaluations in plenary sessions which is contrary to practice, but furthermore the evaluations would need to be inherently balanced to avoid perceptions of bias.

However, a mediator’s task whether in a facilitative or evaluative meditation is to encourage parties to re-evaluate their BATNAs. In so doing providing additional evaluative information may be key. This is argued as if the parties had access to this objective assessment prior to mediation, the mediation itself would most probably not be necessary.

(d) Parties are Polarised at the Outset

As outlined, a reservation of evaluations is that they may create an adversarial environment. However, at the outset of a mediation parties are generally polarised. This is simply by reason of needing a mediator. Therefore, suggesting settlement possibilities may assist the making of an agreement as evaluations appear better coming from a neutral third party as opposed to a counterpart where reactive devaluation may occur.

Although this argument has some weight, it is premised on the assumption that parties will act rationally in realising that a mediator as a neutral has nothing to gain from being biassed as mediation is voluntary and parties can walk away. A biassed reputation would impact the mediator’s credibility which is to be avoided as the free market provides checks here. However, parties are not hyper-rational and may not realise the mediator has much to lose from bias. Thus, any evaluation may be perceived as biassed and may provide a reference point from which a mediator’s neutrality is adjudged, impacting trust and thus the facilitation of information flow.

A Combined Approach

As outlined, there are many positives and negatives to evaluations. However, mediators always offer some implicit evaluations as process managers.

Therefore, to say a mediator should never evaluate is something of an oxymoron as implicit evaluations are inherent in the role.

Although these implicit evaluations occur, the response in relation to express substantive evaluations requires more nuance. While positives exist to offering express evaluations, broadly the dangers outweigh these possible positives. However, this is not to say that a hard dichotomy should exist between facilitative and evaluative mediation. In contrast, evaluations should be given within the facilitative framework as necessary. In other words, evaluations can act as tools when needed, as mediation is a flexible process that should adapt to parties’ needs.

For instance, an evaluation from a mediator may be less subject to reactive devaluation and the perception of competitive bias than an offer coming from a counterpart. Thus, going back to Schulz von Thun’s four-sided message, a party may perceive the same proposal differently than if it came from the counterpart, making a rational response and potential agreement more likely. Further, in reality most commercial actors expect evaluations and if a mediator refuses to engage the effectiveness of the mediation may be lost.

Notwithstanding the flexibility of mediation and the fact specific argument of evaluations herein adopted. This author argues that four broad principles on giving successful evaluations should invariably be upheld: 1. Evaluations should be kept to a minimum, 2. Both parties must consent to the giving of evaluations, 3. Evaluations should almost always be avoided at the expositional stages of mediation, 4. Some evaluations may require expertise and mediators are advised to only evaluate in areas of requisite knowledge.

Conclusion – ‘Never Say Never

As outlined, there are many dangers as well as justifications of giving evaluations from a psychological and legal perspective. The title questioned that mediators should never offer evaluations. This author has argued that this never language is too broad as mediation is a flexible process with party self-determination at its core. Instead of taking a hard dichotomy between evaluative and facilitative mediation, this article has submitted that evaluations should be used as a tool within the facilitative regime as a case so requires, albeit in cognizance of some proposed general guidelines.