Evaluative Mediation: A Mediator Has to Be Real

by John L. Watkins

It is no secret that I am a fan of mediation as a process to resolve disputes. However, I was once reminded in representing a client in mediation that some mediators not only fail to help the parties reach a resolution, they can actually make things worse.

Without getting into the details, the mediator essentially downplayed a major concession that my client was willing to make that went far beyond standing on its clear legal rights. After meeting with the other side, the mediator informed us that the other side did not think that this was a major concession, even though the mediator had to acknowledge that it was.

The mediator's attitude seemed to be that because the other party's subjective beliefs were entitled to at least equal weight with any objective evaluation of the law. Thus, although my client was willing to make a substantial concession, the concession was somehow entitled to little or no value because the other party said they refused to believe it. The mediator thus seemed to believe that the other party's subjective beliefs somehow controlled reality. Needless to say, this went over like a lead balloon.

By giving equal, if not controlling, weight to the other party's subjective beliefs as to an objective view of the law, the mediator lost credibility with my side. The parties made no progress, probably ended up further apart, and the mediation was a failure.

This result was not surprising. As I have written before, a mediator needs to be an advocate: Not an advocate for either party, but an advocate for a reasonable settlement. If the mediator is willing to take positions that lack support, logic, or that appear -- without reason -- to favor one side over the other, the mediator loses credibility, just as would any other advocate.

A mediator can make things worse. A mediator using an evaluative approach has to have credibility. It is one thing to push a party's view of the case based on unfavorable law, facts, or the mediator's experience with similar matters. It is quite another to try to push a party -- particularly in a business dispute -- based on the other party's subjective beliefs or feelings that cannot be objectively justified.

For views on how evaluative mediation can be effective and should be practiced, please visit my website, http://www.watkinsmediation.com/, particularly the tab on "advanced mediation."