'Evaluative Mediation' is an Oxymoron
14 ALTERNATIVES TO THE HIGH COST OF LITIG. 31 (March 1996)
2 Pages Posted: 6 Nov 2013
Date Written: March 1996
An essential characteristic of mediation is facilitated negotiation wherein the mediator remains neutral throughout the process. Inconsistent with this role is an evaluative mediator who assesses the strengths and weaknesses of legal claims, proposes settlement terms, pushes parties to accept a particular settlement, and predicts court outcomes or the impact of not settling. A mediator’s assessment invariably favors one side over the other and jeopardizes neutrality. This article argues that mediation should stand as a distinct and clear-cut alternative to the evaluative and frequently highly-adversarial adjudicatory processes and that mediators should not evaluate.
Keywords: Mediation, Evaluative Mediation, Neutrality, Dispute Resolution, ADR
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