[*] Professor of Clinical Law, Director of the Mediation Clinic and the Kukin Program for Conflict Resolution, Benjamin N. Cardozo School of Law. B.A., Harvard University, 1973; M.Ed., Virginia Commonwealth University, 1975; J.D., Georgetown University, 1979. The author thanks: Kimberlee Kovach, for her partnership in writing about these ideas in an earlier article; Joseph Stulberg, for his partnership in exploring the evaluative-facilitative debate in the context of advanced mediator training programs; Baruch Bush, for his insightful dialogue on the subject; and Len Riskin, for raising the issue in the first place. The author acknowledges and deeply appreciates Rebecca Martin, Abigail Sloane, Roger Brach, and Dan Weitz for their helpful comments on drafts of this Article. Return to text.

[1] Eric Green founded Endispute, a dispute resolution consulting firm. He is a professor at Boston University Law School and the co-author of STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION (1985), the first dispute resolution textbook for law students. The use of this example is not to criticize Professor Green's performance; he is a highly successful and respected neutral intervener. Rather, this Article argues that in this example, Professor Green is combining mediation with neutral evaluation to create a "mixed process." Return to text.

[2] Lavinia Hall, Eric Green: Finding Alternatives to Litigation in Business Disputes, in WHEN TALK WORKS: PROFILES OF MEDIATORS 279, 295 (Deborah M. Kolb et al. eds., 1994). Return to text.

[3] Id. at 298-99. Return to text.

[4] Id. at 299. Return to text.

[5] See Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545, 1586 (1991). Return to text.

[6] See id. Return to text.

[7] Id. Return to text.

[8] See Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7, 27-28 (1996) (describing the mediator techniques associated with evaluative mediation as proposing a settlement, pushing parties to accept a settlement, predicting court or other outcomes, and assessing the strengths and weaknesses of each side's case). Return to text.

[9] John Feerick et al., Standards of Professional Conduct in Alternative Dispute Resolution, 1995 J. DISP. RESOL. 95 app. at 123. Return to text.

[10] See Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, 14 ALTERNATIVES TO HIGH COST LITIG. 31, 31 (1996); see also Robert A. Baruch Bush, Efficiency and Protection, or Empowerment and Recognition?: The Mediator's Role and Ethical Standards in Mediation, 41 FLA. L. REV. 253, 265 (1989) (describing the importance of complete mediator impartiality). But see Marjorie Corman Aaron, ADR Toolbox: The Highwire Act of Evaluation, 14 ALTERNATIVES TO HIGH COST LITIG. 62, 62 (1996) (noting that while the primary risk of evaluation is the mediator's potential loss of perceived neutrality because the "loser" in the evaluation may view the mediator as an adversary, nonetheless, situations do exist in which the careful and thoughtful use of mediator evaluation can serve the parties). Return to text.

[11] See Kovach & Love, supra note 10, at 32. Return to text.

[12] Matthew 6:24. Return to text.

[13] As seen in Professor Green's performance, there are examples in the mediation literature of "mediators" who evaluate. See supra text accompanying notes 1-4. When mediators evaluate, they assume additional roles and potentially jeopardize their effectiveness as a mediator. However, "mixed processes," in which the mediator assumes different roles, can be useful. See discussion infra Part X. Return to text.

[15] See Riskin, supra note 8, at 45 (noting that mediator evaluation can be a disincentive for the parties' candor). Federal Rule of Evidence 408 renders evidence of conduct or statements made in compromise negotiations inadmissible at trial to prove liability for or validity of a claim. See FED. R. EVID. 408. This rule encourages free participation in settlement discussions and highlights the assumption that negotiators will not speak openly and candidly if their remarks are or will be heard by someone who will subsequently evaluate their case. See FED. R. EVID. 408 advisory committee's note. Return to text.

[16] See generally ROBERT A. BARUCH BUSH & JOSEPH P. FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1994) (articulating and expounding the mediator goal of supporting parties' efforts to move towards empowerment and recognition). Return to text.

[17] The technique of "brainstorming," designed to maximize the development of creative options, precludes evaluation of ideas during the idea-generating process as detrimental to creativity. Parties should separate the processes of inventing solutions and deciding outcomes. See ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 62-67 (1981). Return to text.

[18] See MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard I (Am. Arb. Ass'n et al. 1995) ("A Mediator shall Recognize that Mediation is Based on the Principle of Self-Determination by the Parties.") The Model Standards were approved by the American Arbitration Association (AAA), the American Bar Association (ABA), and the Society of Professionals in Dispute Resolution. Return to text.

[19] John Feerick, chairman of the committee that drafted the Model Standards, noted that "[w]e as a group did not buy into mediation as an evaluative process . . . ." Feerick et al., supra note 9, at 103. Return to text.

[20] MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard VI cmt. (1995). Return to text.

[21] See CODE OF ETHICS FOR ARBITRATORS IN COMMERCIAL DISPUTES Canon IV.H (1977) (approved by the AAA and ABA). "[A]n arbitrator should not be present or otherwise participate in the settlement discussions unless requested to do so by all parties. An arbitrator should not exert pressure on any party to settle." Id. Return to text.

[22] See Kovach & Love, supra note 10, at 31 (stating that the Model Standards require a mediator who engages in other processes to inform the parties). Return to text.

[23] See Riskin, supra note 8, at 46 (noting that the need for subject-matter expertise typically increases in direct proportion to the parties' need for mediator evaluation); Carrie Menkel-Meadow, Is Mediation the Practice of Law?, 14 ALTERNATIVES TO HIGH COST LITIG. 57, 61 (1996) (asserting that giving legal predictions and evaluations is the practice of law and cautioning nonlawyer-mediators to be wary of evaluative mediation). Return to text.

[24] MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard VI cmt. (1995). Return to text.

[25] See Paul J. Spiegelman, Certifying Mediators: Using Selection Criteria to Include the Qualified—Lessons from the San Diego Experience, 30 U.S.F. L. REV. 677, 693-97 (1996) (describing the critical role that nonlawyers and nonadversarial thinking have played in the development of mediation). Return to text.

[26] See James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation"?, 19 FLA. ST. U. L. REV. 47, 50 (1991) (raising concerns regarding the transformation of mediation from a consensual to a coercive process); Kovach & Love, supra note 10, at 31-32 (discussing a variety of ways in which courts and lawyers tend to pull mediation towards an adversarial framework). Return to text.

[27] Alfini, supra note 26, at 47 (quoting Albie Davis's comment that increasing the use of evaluative mediation approaches portends the end of "good mediation"). Return to text.

[28] See Jacqueline M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 WASH. U. L.Q. 47, 82-83 (1996) (raising concerns about the quality of justice unrepresented litigants receive when they come to court but are diverted into mediation). Return to text.

[29] See Confidentiality in Court-ADR Programs, 10 ALTERNATIVES TO HIGH COST LITIG. 173, 175 (1992) (discussing the various protections afforded the mediation process). But see Edward F. Sherman, Confidentiality in ADR Proceedings: Policy Issues Arising from the Texas Experience, 38 S. TEX. L. REV. (forthcoming 1997) (arguing that even a strict confidentiality statute should not preclude parties' ability to obtain information relevant to mediator malpractice). Return to text.

[30] See Wagshal v. Foster, 28 F.3d 1249, 1254 (D.C. Cir. 1994) (extending quasi-judicial immunity to case evaluators in the mediation program of the District of Columbia Superior Court). Return to text.

[31] See Menkel-Meadow, supra note 23, at 61 (noting that parties may rely on what mediators tell them). Return to text.

[32] "Rent-a-judge" or private judging is a dispute resolution process in which adversarial presentations are made to a party-selected neutral decisionmaker who renders a decision that is typically binding and subject to the usual appeals process through the courts. See GOLDBERG ET AL., supra note 1, at 280-81. Return to text.

[33] Arbitration is a private, voluntary dispute resolution process in which the parties to a dispute agree in writing to submit the dispute for resolution to a third-party neutral, chosen pursuant to the agreement of the parties. See Michele L. Giovagnoli, To Be or Not to Be?: Recent Resistance to Mandatory Arbitration Agreements in the Employment Arena, 64 UMKC L. REV. 547, 554-55 (1996). The parties make adversarial presentations to the third-party neutral, and the neutral determines the facts and makes an award. See id. at 555. The arbitrator's award is usually binding and not subject to appeal, but may be advisory, depending on the parties' agreement. See id. Return to text.

[34] Early neutral evaluation is a private dispute resolution process in which a neutral with subject-matter expertise provides the parties with a nonbinding, reasoned evaluation of their cases to assist settlement. See J. Daniel Breen, Mediation and the Magistrate Judge, 26 U. MEM. L. REV. 1007, 1019-20 (1996). Return to text.

[35] A summary jury trial is a court-ordered dispute resolution process in which attorneys give brief presentations of their cases to a jury whose nonbinding verdict assists the parties in settling the case. See Frank Evans & Shadow Sloane, Resolving Employment Disputes Through ADR Process, 37 S. TEX. L. REV. 745, 762-63 (1996). Return to text.

[36] See Kovach & Love, supra note 10, at 32 (discussing mediation's distinctive role); Bush, supra note 10, at 267-70 (highlighting mediation's unique capacity for empowerment and recognition). Return to text.

[37] Alfini, supra note 26, at 66-73. Professor Alfini characterizes Florida circuit court mediation, which is conducted by legal professionals, as "trashing," "bashing," and "hashing it out." Id. at 66. "Trashers" tell parties how bad their case is to get each side to be more realistic. Effective trashers have litigation experience that lends to their "trashing" credibility. See id. at 66-68. "Bashers" focus on settlement offers and bash away at the offers, trying to get a midrange number. Most bashers are retired judges who use their prestige to "hammer sense" into parties. See id. at 68-71. "Hashers" are similar to facilitative mediators. See id. at 71-73. Return to text.

[38] See id. at 66. Return to text.

[39] See id. at 69. Return to text.

[40] Marc S. Klein, Reframing the 'Tort Reform' Debate (and Our Participation in It), N.J. LAW., Jan. 1995, at 39 (quoting Albert Einstein). Return to text.

[41] I am arguing for a clear articulation of the mediator's role. See Bush, supra note 10, at 256 (stressing the importance of a governing conception of the mediator's role that articulates mediator qualifications and standards for practice). However, many different visions of the mediator's role exist. See, e.g., Alfini, supra note 26, at 73-74 (summarizing a variety of mediation styles and concluding that a lack of consensus exists as to what constitutes "good mediation"); Bush, supra note 10, at 258 (describing three different conceptions of the mediator's role: efficiency, protection-of-rights, and "empowerment-and-recognition"); Riskin, supra note 8, at 23-34 (describing different mediator orientations based on evaluative-facilitative and narrow-issue-definition/broad-issue-definition continuums). Return to text.

[42] See Kovach & Love, supra note 10, at 32 (stating that "evaluative mediation" shifts mediation into the framework of the adversarial norm and thereby stifles parties' creative capacity to resolve their own disputes). Return to text.

[43] See id. Return to text.

[44] See JOHN LENNON, Imagine, on IMAGINE (Apple Records 1971) (suggesting the possibilities available). Return to text.

[45] See Riskin, supra note 8, at 28 n.67 (noting that assessments can impair a party's faith in the mediator's neutrality or restrict a party's flexibility). Return to text.

[46] See Kovach & Love, supra note 10, at 31 (describing this incident in more detail). Return to text.

[47] See id. Return to text.

[48] See id. Return to text.

[49] See id. Return to text.

[50] See id. Return to text.

[51] Some argue that the mediator should provide the neutral evaluation as a "last step" when the evaluation represents the "sole opportunity for settlement." Aaron, supra note 10, at 62. Others who find evaluation consistent with the mediator's role say evaluations should be made only if parties are sufficiently sophisticated not to be unduly swayed by the mediator's opinion. See James J. Alfini, Moderator, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919, 928 (1997) (quoting Florida lawyer-mediator Lawrence M. Watson, Jr.). While a neutral evaluation can be critical in generating a settlement by expanding parties' information bases and deflating unrealistic positions, the potential harms of a mediator evaluating outweigh the potential benefits. The same result can be achieved by the mediator giving a party-requested evaluation only after notifying the parties that he or she is acting in a capacity other than that of a mediator. See discussion infra Part X. Return to text.

[53] See CHIEF JUDGE'S N.Y. STATE COURT ALTERNATIVE DISP. RESOL. PROJECT, COURT- REFERRED ADR IN N.Y. STATE 7 (1996). Return to text.

[54] Id. at 7. Return to text.

[55] See id. at 8. Return to text.

[56] See id. at 9. Return to text.

[57] Id. at 37. Return to text.

[58] See id. Return to text.

[59] Id. at 54 (emphasis added). Although the mediator does not advise parties on the law and likely court outcomes, the report states that mediators "should be familiar with the law, court rules and procedures pertaining to the subject area of the case they are mediating." Id. Return to text.

[60] See Kovach & Love, supra note 10, at 32 (stating that the term "mediation" should have uniform meaning from state to state and from one court to another). Return to text.

[61] Noreen Connell, Beware of Alternative Dispute Resolution: The "Touchy-Feely Trap", NOW-NYS ACTION REP., Summer 1996, at 7, 7. Return to text.

[62] See Laurence Connor, How to Combine Facilitation with Evaluation, 14 ALTERNATIVES TO HIGH COST LITIG. 15, 15 (1996). Connor describes a two-phase process in which, in the first phase, the neutral evaluates, makes an award, and seals the award. See id. If the facilitation that follows does not result in settlement, the advisory award is shown to the parties as a "reality check." Id. Since the sealed award cannot be changed after facilitation begins, the parties can reveal sensitive matters and possible weaknesses to the neutral without fearing the award will be affected. See id. Return to text.

[63] A mini-trial is a private dispute resolution process in which attorneys for each party present their cases to the other side in an abbreviated format in a session chaired by a neutral advisor. See Evans & Sloane, supra note 35, at 761. After the case presentations, the parties attempt to negotiate a settlement, usually with the assistance of a neutral advisor who facilitates the discussion or renders a nonbinding opinion. See id. Return to text.

[64] In the context of employment disputes, mediation and neutral fact-finding have been successfully combined. See, e.g., Carol Wittenberg et al., Why Employment Disputes Mediation Is on the Rise, LITIG. & TECH. MGMT. REP., Feb. 1996, at 8, 8. Return to text.