I was recently asked by a party, after reaching a settlement, whether my evaluation of the case is determined by which room I am in. The question was asked in jest, but I think they had their doubts about whether I would tell both the plaintiff and the defendant in the same lawsuit that they are unlikely to prevail in order to push for a settlement.
I answered “no,” of course, and explained that authenticity and credibility are the only way mediators will help parties achieve settlements.
At the same time, you may have noticed that some mediators are reluctant to share their case evaluations while others are eager to do so. Here are a few quick tips about when and whether to seek the mediator’s case evaluation:
Don’t Ask Too Early: Mediators should provide the parties ample time to establish their themes of the case, exchange information, and contest key issues before entertaining any evaluations from the mediators. One reason this is important is because the mediator’s opinion should not be set in stone. More often than not, my initial reaction to the case is altered in small and large ways by hearing directly from the parties and having counsel address issues not fully vetted in the written materials provided in advance of the mediation. But an even more important reason is that the mediator’s opinion should not precede the parties’ opportunity to be fully heard and the mediator’s opportunity to establish trust and understand the parties’ motivations. Providing the parties an opportunity to tell their story is a critical step in the psychological process of moving from staunch advocate to collaborative negotiator. In addition, I do not deliver my assessment in the same way to every party. I am better prepared to deliver a difficult message the more time I have spent getting to know the key decision-maker(s), understanding what issues trigger adverse reactions, and how softly or strongly I need to deliver the message in order to make an impact without alienating them.
Don’t Ask Unless It’s Needed: If your client and the opposing party(ies) are advancing toward resolution without hearing the mediator’s case evaluation, there may be no need for it. Plenty of cases settle without me offering a direct opinion because the parties are realistically assessing their risk, listening to their attorneys’ advice, and willing to make concessions sufficient to put the dispute behind them. If that is the case, letting the mediator facilitate the negotiations without offering a case evaluation serves the purpose of allowing the parties to drive their own result without feeling pushed by the mediator. In this instance, the risk of an adverse reaction is more likely to result in the party questioning the mediator’s neutrality than facilitate an efficient resolution.
Consider How Your Client Will React: You should consider what you would expect from your client in response to the mediator’s opinion. How will your client react if he or she hears from the mediator that they disagree with your case evaluation? Will your client shut out everything else they hear from the mediator, or worse yet, end the mediation? Consider how your client has reacted in the past to negative or positive feedback. It may be that an extreme reaction to negative feedback is what led to the lawsuit in the first place. Or will they be completely unwilling to compromise if the mediator provides any semblance of support for their own case evaluation? Your experiences with your client do not necessarily mean that you cannot ask the mediator for their case evaluation, but it may suggest that you should have a conversation with the mediator before or during mediation, outside your client’s presence, in which you share your experience with the mediator and strategize about the best methods for communicating risk.
Allow Your Client to Participate in the Decision: If you think you and your client will benefit from the mediator’s evaluation, you (and the mediator) should discuss the value of the opinion. Like judges and juries, mediators are people with different experiences and biases that may or may not reach the same result as any other person (judge) or groups of persons (jury). They also have only heard the information provided to them in the pre-mediation submissions and the discussions on the day of the mediation. This may not be identical to what a judge or jury will hear at trial. Nevertheless, the mediator is a neutral party hearing what are likely to be the decisive factual, moral and legal issues in the case. At the very least, their opinions reflect a first impression, something akin to an opinion formed after opening statements (and maybe a key witness or two), which may be difficult to overcome at trial, and a potential outcome to include in their risk assessment. And the mediator should share with you what obstacles they face in rendering their opinion, whether it is difficult to assess how a party or third-party witness will perform at trial or a legal issue that could be decided in more than one way. No matter what, the mediator’s opinion should reflect their thoughtful consideration of what has been presented and their own experience litigating cases, as well as their genuine concern for the well-being of the parties heading toward a trial with uncertain outcomes that might include potential harmful results.