Beyond Abstinence: The Need for Safe, Impartial Evaluation in Mediation

24 Dispute Resol. Magazine 22 (2019)

5 Pages Posted: 9 Apr 2020

See all articles by Dwight Golann

Dwight Golann

Suffolk University Law School

Marjorie Corman Aaron

University of Cincinnati - College of Law

Date Written: November 15, 2019

Abstract

The field of mediation has schizophrenic views about evaluation. Many academics and trainers argue that it is improper, but lawyers consistently say they value mediators’ opinions. This article argues that evaluation in a broad sense is essential to a mediator’s role, and that the real issue is not whether mediators should evaluate, but when and how to do so. Mediators, it suggests, handle evaluations in three ways: expressing them directly, suggesting them implicitly or “leakily,” or keeping them silent and hidden. The article analyzes how mediators may communicate an opinion implicitly and unconsciously through gestures, tone of voice and other non-explicit methods. Advocating total abstinence does not stop evaluation, we suggest. Rather it results in mediators evaluating without proper training or an understanding of what they are doing. Evaluation, we say, is the mediative equivalent of surgery in medicine: something to be avoided if possible and used sparingly, but a treatment that can be effective in promoting settlement if done with awareness and good technique.

Keywords: mediation, evaluation, mediation techniques, settlement, implicit communication

JEL Classification: K40, K41

Suggested Citation

Golann, Dwight and Corman Aaron, Marjorie, Beyond Abstinence: The Need for Safe, Impartial Evaluation in Mediation (November 15, 2019). 24 Dispute Resol. Magazine 22 (2019), Available at SSRN: https://ssrn.com/abstract=3532555

Dwight Golann (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
617-573-8183 (Phone)
617-305-3086 (Fax)

Marjorie Corman Aaron

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States

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