A Call for Feedback on Mediator Evaluation and Opinion-Giving

Mediator Practices and Perceptions (Part 3):

By: Tom Stipanowich, IAM Honorary Fellow & Karinya Verghese*

Email: Thomas.Stipanowich@pepperdine.edu & karinya@karinyaverghese.com

Posted: June 16, 2016

As a recap (or for new readers) Tom’s recent article titled “Insights on Mediator Practices and Perceptions,” outlines three areas of apparent regional divergence in mediation practice, arising out of the 2014 survey conducted by the IAM and the Straus Institute for Dispute Resolution, Pepperdine School of Law. The divergent areas include: (1) the relative use of joint session and caucus in mediation; (2) the way in which mediators handle information divulged by the parties in caucus; and (3) the extent to which mediators provide case evaluations and opinions. The article was featured in the American Bar Association Dispute Resolution Magazine, Winter 2016, and the full text (6 pages) can be found HERE.

In our last two posts, we elicited your views on the use of joint session and caucus and the handling of confidential information obtained from the parties in caucus. This final post focuses on the use of evaluation and opinion-giving by mediators. Again, it is our hope that you will read the relevant extract from the article below, look at summary data Table C and respond to the question raised at the end:

A third area of divergence was in the realm of mediator evaluation and opinion-giving. Although many US mediators were first taught that they should respect party autonomy by avoiding any expressions of opinion regarding the issues in dispute or the prospects for recovery in court, many of these same mediators soon found themselves offering evaluations at some stage of mediation, and parties often actively sought such input. Indeed, a 1991 survey capturing specific mediation experiences of US construction attorneys indicated a statistically significant correlation between mediator evaluation and settlement in construction cases. Given the strong representation of US practitioners in the IAM/Straus Institute survey, it is perhaps not surprising that 80% of respondents indicated that their reputation as a mediator who can offer useful assessments of parties’ cases was a factor of some importance in attracting and maintaining clients.

However, there were distinct regional differences in responses to related queries. The data indicates that, generally speaking, mediators outside the United States tended to be much more likely than their Californian counterparts to “help parties develop, consider, and/or communicate proposals that may lead to settlement, but . . . not offer [their] own opinion regarding these proposals” (emphasis added). Conversely, mediators practicing in California were much more likely to “develop and propose potential agreements the parties might all accept as part of a potential settlement,” to “tell parties [their] predictions of how not settling might affect them, including what [they] think may result if the case proceeds to court or arbitration,” or “assess and share [their] opinion regarding the legal strength of arguments made by parties and/or counsel.” Table C provides a regional comparison of responses relating to the last statement.

Reader Feedback

To help us gain further insight on this issue, mediators are encouraged to offer their comments (and geographic location of practice) on the following question, by emailing Karinya@karinyaverghese.com:

Can you share some general observations regarding your own use of evaluations and opinions in mediation?

*Thomas J. Stipanowich is the William H. Webster Chair in Dispute Resolution, Professor of Law, Pepperdine University School of Law and Academic Director, Straus Institute for Dispute Resolution. Karinya Verghese, LL.M. in Dispute Resolution (2014), is the Straus Institute Research Fellow (2015-2016) and an Independent Commercial Mediator and Conflict Resolution Consultant in Los Angeles.

© 2016 Tom Stipanowich & Karinya Verghese