Evaluative Mediation—Curriculum modules

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Obviously, all of these topics cannot be “addressed”, let alone “learned” in a short course. However, they can all be foreshadowed. A selected number can be included in a course on evaluative mediation, and exercises used to assist “learning” of those topics.

1.      What is a working definition of evaluative mediation (EM)?

2.      What are the different names given to EM?

3.      What different models exist of EM? What differences have you experienced in what areas of conflict?

4.      What hybrid models of EM exist—ie where EM is mixed with other processes such as facilitative mediation; or arbitration etc?

5.      Context—Why is there a continued interest in the different schools of mediation? Why is there an interest in EM? Write out, interview, discuss and systematise for marketing speeches. (Wade 1998b)

6.      What are the special challenges in teaching/learning EM? Eg Too many specialised areas of knowledge. How to test whether the specialised “advice” is accurate? ( Wade, 2000; 2009b)

7.      All “skilled helpers” give advice in similar and different ways. What differences are there along the spectrum of questioning–information—-options–opinion—recommendation—gentle advice—insistent advice? Which level do you, clients or others want or like, in which areas of conflict? (Wade, 2012b)

8.      Advice can be based on anecdotes (stories); systematised stories (“in my experience—); general doubts about the use of conflict and litigation; specific doubts surrounding a particular conflict and predicted outcome (facts, evidence, rules, and range of possible outcomes); statistical studies on the outcomes of disputes in particular areas?  (The last is arguably most persuasive and least used by lawyers). Which kind do you or your clients want or like?

9.      What kind of EM process do you want to use in practice; or have available for clients? Describe type and context.

10.  What “cultural” factors (across nations, races , educational levels, and industries) will or might  change answers to 7,8, and 9 above?

11.  How can a client locate an EM who is competent in process and expert in “substance” in a particular area of dispute; and is available; and is affordable?  Most retired experts experience an increase in availability, and a decrease in expertise?

12.  List the alleged benefits of EM—for lawyers, their clients, and for the mediator.

13.  List the alleged disadvantages of EM—for lawyers, their clients, and for the mediator.

14.  Compare the alleged benefits and risks of A. Litigation (“litigotiation” per Marc Galanter); B. Arbitration; C. Other kinds of mediation: and D. negotiation.  ( ie know the alternatives, and the services “competing” with EM).( Wade 1998b)

15.  What are the risks of EM for mediators from : A. Legal liability; B. The Competitive Marketplace; C. Professional discipline? (Wade, 2003)

16.  NB Diagnosis: What “types” of clients and disputes are suitable for EM?  (Wade 2010b; 2012c) eg.

·       Client who is not listening to his/her own lawyer

·       Need an authority figure to blame

·       Cultures or groups who are accustomed to defer to “authority” figures

·       Opponents or self “inexperienced” in certain areas of law.

·       Test arguments before one expert, in preparation for a trial

·       Process a large number of disputes at low cost.

·       Need to avoid publicity of a trial or court documents

·       Alternatives such as arbitration or litigation are too expensive, delayed, uncertain in outcome; judges and arbitrators are inexperienced, or corrupt etc

17.   NB Diagnosis: What types of clients and disputes are not suitable for EM? (2001c)

18.   How to market EM honestly in the light of these limits and diagnostic

factors? How to market EM “successfully”, especially in the light of so many failed marketing attempts for various DR products and services? ( more propaganda than reality?)

 

19.  What are the needs of the “gatekeepers” (eg lawyers) and “referral agencies” who send clients to EM?

20.  Do you know a successful evaluative mediator? Who?  What do you observe/guess in his/her behaviour which makes his/her practice a “success”?

21.  How to study the “success” of any EM, when EM sessions and outcomes are confidential—with no independent case reports?

22.  Preparation. All mediators and arbitrators work with an abacus of preparation by the parties ranging from zero to comprehensive. On that abacus, is there an “ideal” of minimal preparation which an EM should/could request from all parties? Eg

·       A written and agreed statement of “facts”

·       An agreed and written list or agenda of “topics” or “issues” or “lines” with each line of facts, process, rules and remedies showing the current gaps or differences between the parties on each line (drawing up such language and lists is a high skill which most disputants do not have, Wade 2001b).

·       To what extent should the list of lines and topics go beyond “legal” topics to include key personal, business and communal topics? (these “extra non legal” topics, express or hidden, arguably hold the keys to the vast majority of settlements). (Wade 2001a)

·       Summarised dot point arguments in writing on each line as to why the abacus bead should move towards each parties’ preferred solution.

23.  Preparation assistance. To what extent should/will an EM assist one or all parties to prepare as above, or leave them to wallow, or somewhere in between?  During the mediation, to what extent should/will the EM assist the disorganised to become organised? See the same dilemmas facing judges worldwide with the proliferation of self represented clients.

24.  “Filling in key missing material?”  How should/could an EM respond when she perceives that the prepared and presented material of one or more parties has overlooked key facts, evidence, rules and probable/possible outcomes?!!! What is the range of possibilities? Silence? Or pointing out the perceived omission privately; or jointly; or just to lawyers?

25.  What “educational” materials can/should an EM send out to all parties?:eg

·       Disclosure of how often the EM has acted in mediations involving one of the parties, or their lawyers, in the past? (Compare strict duties of disclosure imposed upon arbitrators).

·       A dot point list of normal “steps” in an EM

·       A video illustrating the normal steps

·       Exclusion clauses for any negligent advice?

·        Compare the standard contracts of mediators. What different clauses do EM add?

26.  Private and joint meetings.  Almost all EMs meet privately with each party, and privately with lawyers, or sub-committees (the moderates) from each team.  How do EMs deal with the inevitable suspicion that they have been influenced by lies, threats, and theatre, which the other side(s) knows nothing about and therefore has no opportunity to respond? 

27.  Confidential grenades.  What is the range of options which an EM has when given expressly confidential information (or lies) in a private meeting? The EM “knows”, that if the revelations are true, these will dramatically alter the outcome in court; or at the door of the court?—eg fraud, tax evasion, perjury, criminal rackets within a business, medical reports justifying dismissal from employment; sexual abuse; plans to shut down a business etc.

28.  “Switching” beyond Legal Analysis.  Arguably, the vast majority of settlements are finally “triggered” by life and business goals (and the converse risks), which have little to do with “legal” analysis of facts, evidence, rules and remedies. (eg weariness, risk aversion, starting a new business, skeletons in the closet, medical illness—all of which prompt a “discount” or paying a “premium”-Wade 2001a). An EM attempts first or eventually to narrow the gaps on the “legal” topics or lines. When and how should an EM “switch” to  analyse the key life and business goals and risks of each party?  How can an EM extract these important goals and risks when most EMs are not trusted with confidential information? (A common reputation of EMs is that “they just try to beat both sides up with doubts, and then demand that you both split the difference—so tell them nothing.”)

29.  Persuasion?  EMs are professional persuaders. They are trying to influence one or all or key parties to the dispute to change beliefs, emotions and behaviours.  How can the diverse people in different teams be persuaded? Eg

·       See Cialdini, Influence,

·       Chart of standard “doubts” (Wade 2008)

·       Kahneman, Thinking Fast and Slow—humans, especially including experts, are not “rational”.

30.  Why be “influenced” by EM’s advice?  There is very persuasive research which shows that the advice of lawyers; and the decisions of judges and arbitrators on identical “facts” are wildly divergent—emphasise wildly, no matter what the degree of expertise (eg Kiser (2008), Wade (2006b) etc). Litigation is indeed a lottery. Moreover, the wildness of the advice of all EMs  is further exacerbated as EMs are given fewer facts, less evidence, less time, more disorganised documents, with no power to force disclosure, adjourn or punish lies and sloppiness.  So back to the key question 11—what are the “hidden” benefits of EM, if any express “solution” or “number” advice is statistically little better than a guess?  Is EM a faster, cheaper, more confidential, less stressful, less final, more client controlled, more flexible etc lottery that its cousins arbitration and litigotiation?—but even more “arbitrary”?

31.  Personality and “soft skills”. There is considerable research which suggests that “successful” skilled helpers (including mediators, counsellors and lawyers), have an attitude of caring, and high levels of “core skills” such as listening, acknowledging emotion, reframing, summarising and asking questions ( LARSQ). (“successful” here includes a steady flow of paying clients). Can caring and core skills be taught/learned? Or are they implanted by genes and early nurture?

32.  Content of “advice” or evaluation. (As compared to the methods of conveying that advice). What are the alternative (or cumulative) contents of advice which an EM (or anyone) can give? (Wade 2012b)

·       Questioning, listening and summarising back to client what are his/her important life and business goals, and converse risks. Using his own goals, monetising these, and suggesting concessions or demands to reflect these. “Remember you said that this value is important to you? Therefore, to be consistent with your own principles——-?” “ How much are you willing to pay to avoid that risk you identified?” ( Cialdini—one of the most effective cross cultural forms of advice).

·       Statistics about court process to create doubt about “confident” legal advice or guesses. New tribunals particularly tend to have excellent statistical records of claims, abandonment, time of settlement, place of settlement, number of preliminary hearings, amounts of agreed settlements, and ranges of tribunal orders, appeals and actual payments made  in the few hearings which occur. There are many devastating statistical studies, old and new, which too readily disappear from view. Eg only 1% of filings reach judgment; 40% of initial claims are subsequently abandoned; in 60% of cases legal costs exceed amount amounts of judgment or settlement; only 35% of judgments ordered on paper are ever actually recovered in cash; average plaintiff who reaches court only recovers 20% of initial claim (Kiser); 61% of plaintiffs who “win” in court, receive a judgment which is less than the defendant’s last offer ( less by an average of $43,000 gross—Kiser again) etc. However, very few lawyers or mediators keep up to date with these powerful statistics. These are usually far more influential to business clients than rambling opinions about the latest precedent cases. These reported cases say nothing about the key 99% of disputes which settle.

·       Advice based on the general doubts about court processes. There is now vast literature, and general commentary about the delays, expense, adjournments, uncertainty of outcome, adverse publicity, pressures to settle, disinterested or stressed judges etc. Therefore—“Consider seriously, taking a discount or offering a  premium” on the current predicted outcomes.

·       Specific doubts about the arguments submitted by one or more of the parties to the dispute. “ I could be wrong of course, but on first impression I am not as confident as you appear to be  —–about proving this fact; about the credibility of your expert/witnesses; or that a local judge will understand this complex argument; or that a judge will agree with your suggested interpretation of the rule; or that the currently miserly judges will go to the top of the damages range; etc”

·       Narrowing ranges. A key role of an evaluative mediator is to narrow the ranges of the standard wild extremes which start or jam legal negotiations.  “ Your starting positions are predictably out of the ballpark.  Your lawyers justifiably start claim and counter claim with high and low numbers—but as new facts emerge, these claims need to be modified to reflect the kind of broad range which the different judges would fall into. So I suggest that you each take off, and add on, respectively $X to your current offers. That new gap will then more realistically reflect the range among the current judges.”

·       Specific number. Sometimes the “advice” is a specific number (of dollars, acres, board members, shares etc). “Given all the risks we have discussed, my advice is that if I can get an offer for $1.3 million, or thereabouts, from them—you should accept, and get back to focus on your expanding business ventures.”

·       Discovering and adding extra benefits. Using standard problem solving skills, a competent EM will usually hear or assume other goals than are reflected in the visible cash competition of the “legal issues”.  For example, “if they will add to the package, three extras—1. A satisfactory reference; 2. Joint right to use your inventions; 3. Sponsorship of one more conference—then I think you ought to substantially reduce your monetary damages claim, as my understanding from you is that those cumulative items are worth millions to you. And will be a loss of millions if you do not get them?

 

33.  Methods of conveying advice. The content of the advice given from the examples above, is nearly always “bad news” for one or more of the parties to the dispute. This is especially true as legal cultures tend to begin claims and negotiations with numbers in the “insult” zones. The normal goal of an evaluative mediator is to “lower expectations” and “create doubt”. So the hearers, their lawyers and supporting tribes are likely to be resistant, disappointed and perhaps will “shoot the EM messenger.”  Such is the precarious nature of the EM profession. So what are some of the methods for couching the disappointing content, in an acceptable form of wrapping? 

·       Choose to deliver the message in a private meeting, rather than a joint meeting

·       Choose to deliver a version of the message in private to each lawyer, and ask his/her opinion on who and how to deliver that message to the clients.  The lawyer has profound interest if the EM is about to contradict his/her overconfident predictions.

·       Create doubt by constantly asking gentle questions. “How would that work–? What if a judge disagreed with—? “ What is the opposing version of events?  So what is the likely range of outcomes between those two numbers?”

·       Visuals. Most clients seem to appreciate it when the complexity and verbose nature of legal language is reduced to images and visual summaries. This is particularly true in construction, architectural and artistic communities. For example, it should be standard for each topic or issue to be drawn as a line across a board, with topic described by a “how” or a “what” question. An abacus bead is then drawn on each line to indicate the current position or solution of each party. Thereby the “gap” on each topic is visualised, and the need for the bead to “move”.  Each line can relate to facts, process for discovering facts, rules and remedies.

·       Suspense. The EM can choose to impress and gain the trust of clients and lawyers by excellent listening, summarising, and questioning skills, before showing his hand with advice or judgement.

·       Humble and “qualified” language. As the EM is giving an opinion about a system which is rife with uncertainty (“a lottery”), it is essential that his/her language reflects humility and is “qualified” ( in two senses of that word). “ My current understanding is—“; “ Of course, in a room with ten lawyers, there are ten different opinions—“; “ I have been working in this field for 30 years and know that there are diverse opinions. Mine is—“.  “ I cannot suggest to you a number, but I can give you a range into which I am at least  80% certain the result would fall in a court room”;  “ I could be wrong if that witness stumbles—“; “ You both have to make a hard decision, and my job is to help you sell the outcome to your business partners, not as just, but as satisfactory and as one you can all work with.” Etc.

34.  Dealing with disappointment. Once an EM gives an opinion, then one or more parties, and their background supporters, will be disappointed.  Lawyers may be devastated as the opinion will necessarily differ from their learned advice and opinions. The EM may never be hired again. How can an EM prepare for and respond to this inevitable disappointment? What are the options?

 

·       One common method is to assist the parties to close gaps first by negotiation, then talk about multiple risks, then suggest splitting the difference in the last gaps—thereby everyone is supposedly disappointed to some extent?

·       Foreshadow opinion privately to disappointed lawyer and ask for his/her response; and advice on how to present the evaluation

·       Carefully protect lawyers by suggesting that original advice is always based on the limited facts available, but must now be qualified by new facts.

·       Emphasise that the advice given by the EM is only one view, and is indicative of the fact that every new “judge” will interpret the dispute and possible remedies differently.

·       Always express advice in ranges, not specific numbers—the range representing good day-bad day outcomes in a court hearing.

·       Give several different pieces of advice, each prefaced by “assuming that—(witness X is more credible than witness Y) then—-“. However vice versa, “assuming that witness Y is more credible than witness X” then—“.  Thereby the EM highlights a number of variables, which will emphasise the range of possible outcomes.

·       Defer giving opinion and evaluation, and work at parties reaching an agreement via standard “less” evaluative mediation processes. Sometimes settlements will occur without the pressure of the evaluation.

·       etc

35.  Variations in process.  The many possible variations in mediation processes can be set out as an “abacus” of variables—short to long; two hours to 3 weeks; no preparation to extensive preparation; swapped documents to documents only to the mediator; private meetings to never private meetings etc. EM adds more variables to the mediation abacus, such as foreshadowing “emerging” opinion to hiding opinion till the last; exploring settlement before or after opinion, or both; client controlled to lawyer controlled; standardised procedure to flexible procedure (compare analogous variables in arbitrations)  (Wade, 1999a; 1998b; 2012a)

36.  Negotiate first; then evaluate; then negotiate more. One niche procedure is to conduct a “problem solving” mediation/negotiation first; and when the parties get jammed on particular topics, the EM switches and asks if the parties want an opinion on that jam; then the parties move onto the next topic, or resume offers on the jammed topic, or both. How realistic is this process, as it requires the EM to be multi-skilled? One version of this process has become known as a “mediator’s recommendation”. As part of the EM’s contract, or by on the spot agreement, the parties can agree to hear a recommendation from the EM on how to settle a jammed topic.

37.  Marketing? When marketing EM (or any process), is it worthwhile to be known to use a standard process, or predictable template?  How much planned or spontaneous process flexibility is advisable—for what purposes?  Should the “evaluative” function be offered in writing? As a choice made before the meetings; or made during the meetings by all parties? In private, or in a public meeting with all parties present for the evaluation? Should evaluation be given only if all parties agree? Or can one party request a private evaluation?

38.  How can/ should EMs respond to the competition (“turf wars”) for business, and paying clients, amongst various dispute resolution providers? (Wade, 2013)

39.  What quality controls can and should be imposed on EMs as their practices become known, and institutionalised? Marketplace? Licensing? Complaints board? Continuing education? Apprenticeships? Codes of ethics?

40. Standard hurdles.  In all forms of mediation, arbitration and litigation, there are standard hurdles which occur.  Foreknowledge assists to identify these hurdles in advance, and to consider preventive options; and to have some responses when the hurdles suddenly arise. Such standard hurdles in EM include:

·       parties hide information from the EM

·       parties fail to prepare as required by the EM

·       parties lie to the EM

·       Lawyers fall into posturing before EM in an attempt to influence his/her forthcoming “opinion” (Brazil).

·       Many mediators put parties in separate rooms and then carry information and offers from room to room. This encourages some lawyers to posture and reveal minimal information to the mediator, as they know that the mediator will “leak”.

·       parties try to ambush others with “new” information or reports

·       one or more of the parties are disorganised in presenting facts, evidence, rules, range of remedies, their own personal and business goals etc

·       the EM requires a long and expensive education about complex areas of business, life and rules of law (Wade 1998a)

·       the egos of duelling experts ( Wade 2006e)

·       missing information which prompt expensive adjournment of  meetings

·       self represented clients

·       EMs who try to market only to rich clients with competent lawyers. Where are the market niches?

·       EMs who quickly lose market credibility as their basic advice is “split the difference”.

·       The various challenges of private meetings with EMs. These challenges are well documented for arbitrators and for judges. The challenges include lies, theatre and whispers from one party seeking to influence the EM; opposing parties having no knowledge of or right of reply; EMs leaking such confidentialities in an attempt to pressure a settlement.

·       EMs being asked for legal advice and preparation by one of the parties.

·       EMs being perceived to be biased due to repeated employment by one client—eg an insurer, or a union.

·       EMs being asked to draft settlements (with inevitable loopholes); or EMs giving legal advice which turns out to be clearly wrong  (notably, recommended numbers fail to include tax deductions; or “final” agreements are not so final as suggested)

·       EMs not being trusted with confidential information, therefore key interests are not disclosed and opportunities for packaged settlements are lost.

·       How to manage the apparently common advice given by lawyers to clients before an EM?;  “ The EM will try to go back and forth between us, and cast doubt on the effectiveness of our arguments. Ignore the mediator, that is his job, say nothing, and only listen to me”.

 

There is now a vast literature on evaluative mediation. Below is further writing by the author on the above topics. These articles have been published in various places, and are now assembled for easy access at epublications@bond.edu.au under the author’s name, J.H.Wade.

·       Chaos Management: Negotiating with Donald Trump: Lessons from the Legal Profession (2017)

·       Negotiating about Power Sharing and how to make Decisions in the Future (2015)

·       Judicial Mediation and Competition for Clients and Government funding among Dispute Resolution Providers (2013)

·       The Edges of Orthodoxy in Mediation—You did What? (2012a)

·       Evaluative and Directive Mediation: All Mediators Give Advice (2012b)

·       Matching Disputes and Responses-How to Diagnose Causes of Conflict and to Respond with appropriate Interventions and/or referrals (2012c)

·       Skills and Processes for Facilitative and Evaluative Mediation—a Workbook, (2011)

·       Preparing for Mediation and Negotiation in Succession Disputes (2010a)

·       What do clients of Mediators Want? (2010b)

·       The Procedural Evolution of Conflict towards litigation and the Implications for Legal Publishers (2010b)

·       Negotiating with Difficult People (2009a)

·       Defining Success in Negotiation and other Dispute Resolution Training (2009b)

·       Persuasion in Negotiation and Mediation (2008)

·       Learning and Teaching: Aims, Goals and Objectives (2006a)

·       Arbitral Decision Making in Family Property Disputes—lotteries, crystal balls and wild guesses (2006b)

·       Dobermans and Diplomats: Seventeen Strategies for Re-opening Hopelessly Deadlocked Negotiations (2006c)

·       Crossing the Last Gap (2006d)

·       Duelling Experts (2006e)

·       A Lasting Agreement (2006f)

·       Bargaining in the Shadow of the Tribe (2006g)

·       Liability of mediators for pressure, drafting and advice (2003)

·       Systematic Risk analysis for Negotiators and Litigators: How to Help Clients Make Better Decisions (2001a)

·       Levels of Problem Definition (2001b)

·       Don’t Waste my Time on Negotiation and Mediation: This case needs a Judge. When is litigation the right solution? (2001c)

·       Re-inventing the pyramid: A Process for teaching and learning in mediation courses (2000)

·       Arbitration of Matrimonial Property Disputes (1999a)

·       What skills and attributes do experienced Mediators Possess? (1999b)

·       Forever Bargaining in the Shadow of the Law—who sells solid Shadows? (Who advises what, how and when) (1998a)

·       Current Trends and Models in Dispute Resolution: Parts 1 and 2. (1998b)

·       Mediation: the Terminological Debate (1994)

·       Lawyers and Mediators: What each needs to learn from and about the other (1991)

 

And two influential and helpful articles (among the many) relevant to evaluative mediation.

Brazil, W., Professionalism and Misguided Negotiating, ch.78 in Schneider and Honeyman, The Negotiator’s Fieldbook, 2006.

Kiser, R.L. et al, “Let’s not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations”(2008) 5 Journal of Empirical Legal Studies 551