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

See all articles by Veronique Fraser

Veronique Fraser

Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD)

Kun Fan

Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre; UNSW Law and Justice

Date Written: March 1, 2021

Abstract

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

Fraser, Veronique and Fan, Kun, Mediators Using Non-Binding Evaluations and Making Settlement Proposals (March 1, 2021). 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., Available at SSRN: https://ssrn.com/abstract=3839145

Veronique Fraser

Université de Sherbrooke - Group for the Prevention and Resolution of Disputes (G-PRD) ( email )

150 Place Charles-Le Moyne
Longueuil, Quebec J4K 0A8
Canada

Kun Fan (Contact Author)

Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre ( email )

UNSW Law
Sydney, NSW 2052
Australia

UNSW Law and Justice ( email )

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