The Intersection of Evaluation by Mediators and Informed Consent: Warning the Unwary

Abstract:     
What should mediators tell parties before stepping into a requested decisional or evaluative role with respect to some aspect of the mediated case? Any mediator move away from facilitation and towards an arbitral role of suggesting the likely court outcome will have important repercussions. Mediator evaluations may bolster party self-determination - the first ethical standard of mediation - by leading to better-informed decision-making. On the other hand, mediator evaluations can give one party more leverage in the negotiation. The other party will experience increased pressure to settle and may lose face. With the giving of an opinion, the mediator may lose his credibility as a neutral.

In cases where a mediator uses private caucuses, the mediator's opinion has certain inherent flaws as a result of being developed after ex parte communications, since parties are unable to rebut things they do not hear, things said or documents shown in private conversations between the mediator and one party. Such separate communications may impact the mediator's evaluation, making it different than what a judge might decide. What sort of warnings should be given to parties? When should the warnings be given? How does the concept of informed consent help in defining the mediator's responsibility to give adequate warnings?

This article explores the dimensions of harm and benefit that can result from mediator opinion and makes practical suggestions about what mediators can do to minimize the harm and ensure informed consent by parties to the provision of mediator opinion and evaluation. In addition, the article examines the standard of care that should be used in providing a legal (or other) opinion.

Number of Pages in PDF File: 29

Keywords: mediation, informed consent, alternative dispute resolution

working papers series