A Conversation about Evaluation in Mediation

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Institute for the Study of Conflict Transformation by Dan Simon

A made up conversation follows. It’s an amalgamation of conversations I’ve had with mediation trainees.

Mediation Trainee: I get it that mediation is about self-determination. Therefore, when parties ask us to give them an evaluation of their case, shouldn’t we honor that determination they’ve made? I mean they’ve hired us to settle the case, right? Don’t they need to know if their expectations are too high?

Me: Ah, good question. Yes, it would seem that to honor self determination, we would want to go ahead and take action when they make a request like that. The reason we don’t act on that request is that we have a slightly different understanding of what self-determination means.

Mediation Trainee: Ok, so what’s that?

Me: Well let me try to answer that question with a question: what if the parties asked you to make a binding decision about the outcome? Would you honor that request?

Mediation Trainee: No.

Me: And why not?

Mediation Trainee: Because that would be arbitration. This is mediation and mediation is about self-determination.

Me: Exactly, and in what way is arbitration inconsistent with self-determination?

Mediation Trainee: Obviously that when a 3rd party makes a binding decision, the parties are essentially coerced to follow that decision. But in mediation, it’s voluntary whether or not they settle.

Me: Ok, so my point is that when a mediator provides evaluation, that can also be coercive. That is, the parties feel obligated to take the mediator’s evaluation seriously. They have no choice about how that evaluation comes out, and they don’t have much choice about whether an evaluation appears, if the mediator is ready, willing, and maybe selected for her ability to give an evaluation. If the evaluation fits with one party’s views, that party is likely to feel temporarily vindicated, but also more attached to his position, and also probably more resentful of the other parties’ demands that the mediator has now confirmed are off-base. And of course, the party who disagrees with the evaluation will feel especially disadvantaged and likely become resentful of the mediator and become more resentful of the other party who now appears to have received authoritative support. And if, as is likely, the mediator’s evaluation is down the middle between the parties’ demands, those negative impacts can happen to both parties. If the evaluation does move the parties closer to settlement, it also adds to their resentment, so it can even backfire, moving the parties away from settlement. Meanwhile, the process has become far less about self-determination.

Mediation Trainee: Ok, but haven’t they hired us to settle the case?

Me: Settlement certainly is often of primary importance to the parties. But the question is how do they get there? Parties may indeed believe that they need someone else to come in and render an opinion (and they should be free to seek that elsewhere) but the potential of mediation is that parties discover that they can arrive at their own decisions without appealing to an outsider’s opinions.

Mediation Trainee: Ok, so I guess this is what makes mediation truly distinct from arbitration.

Me: Bingo. Mediation has the potential to be very different from processes that include adjudication or evaluation.

Mediation Trainee: Ok, so remind me what’s so great about self-determination?

Me: Profound question, but in short: Autonomy is simply innately important to us humans. Part of what we hate about being in conflict is that we feel coerced, victimized, bullied, or harassed by the other side. That feeling tends to persist through arbitration, through litigation, through the post-trial appeals, and through attempts to collect judgments. Conflict that persists through those phases tend to never be really resolved. Even if the lawsuit ends, the resentment, the regret, the bad taste in the mouth can last a lifetime. On the other hand, if people arrive at a better place through self-determination, they’ve REALLY, FULLY arrived at that better place. There’s no need for further appeals or for resistance to carrying out the terms of an agreement. (And even, if the mediation doesn’t end the litigation, the process, because of the empowering experience of self-determination, can help parties get calmer about and clearer about how they want to approach the ongoing litigation, also making them more open to an acceptable settlement later).

Mediation Trainee: Ah yes, you mentioned “empowerment”. I’ve heard that term often in this course. So what about the other big term, “recognition”?

Me: Recognition shifts are another potential benefit of mediation, but they only happen if the mediation is characterized by self-determination throughout. Those shifts, where parties get a clearer understanding of each other are helpful because they make us: less likely to carry resentment, more able to understand the other side’s perspective and needs, more able to problem-solve effectively with them, and more in touch with the universal human value of compassion toward others. When that new responsiveness is combined with that newly experienced sense of empowerment, we are in the best possible place to explore possible settlements and to make decisions we feel good about in general.

Mediation Trainee: Wow, inspiring!

Me: Yep.