The Changing Role of Evaluation in Commercial ADR

Abstract:     
This piece describes how processes of non-binding dispute resolution in civil cases changed over the past twenty-five years from heavy reliance on court-like evaluative processes such as advisory arbitration and mini-trials, and toward much greater use of facilitative mediation. The article argues that commercial mediation has evolved into a mixed form of facilitation and evaluation, and that in current practice “evaluation” consists of a spectrum of mediator interventions, ranging from “reality testing” questions to hard, global opinions about case value. The content of evaluations has also changed; they are no longer limited to the legal merits and more often consist of the neutral’s assessment of party attitudes and the bargaining situation.

Number of Pages in PDF File: 6

Accepted Paper Series