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

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