Mediators Using Non-Binding Evaluations and Making Settlement Proposals
Reprinted with permission from: New York Dispute Resolution Lawyer, 2021, Vol. 14, No. 1, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.
4 Pages Posted: 5 May 2021 Last revised: 6 May 2021
Date Written: March 1, 2021
Working Group 3 (WG3) of the Task Force on Mixed Mod Dispute Resolution explores the topic of mediators using non-binding evaluations and making settlement proposals as a form of mixed
mode dispute resolution. Mediators employing such techniques might express their assessment of the strength of a party’s case, predict the outcome of any arbitration or litigation that might follow the mediation or, at the parties’ request, make an outright suggestion of how the parties could settle the dispute.
WG3 provides a framework for assessing a mixed mode within a mediation process. It puts forth that mediators should explicitly discuss process design with parties, in light of WG3’s Grid Regarding Party Autonomy in Mediation and Conciliation and the potential impact of a mediator’s intervention on parties’ self-determination regarding substance and process. Moreover, WG3 shows how a mediator can align and adapt mediation techniques with the parties’ process choices regarding substance and process.
Keywords: mediation, conciliation, settlement proposal, mixed mode, dispute resolution, evaluation, facilitation
JEL Classification: K10, K20, K30, K40, K41
Suggested Citation: Suggested Citation