Where’s the Line?

Where’s the line between evaluative mediation–which is still a type of mediation–and non-binding arbitration, which is no longer mediation, but rather a type of arbitation? If, at the end of a long day of mediation, the mediator offers to come up with a number which the parties can accept or reject, has the mediator now crossed the line into non-binding arbitration? Is the mediator being evaluative? Or is the mediator simply helping the parties by suggesting a number that is based, not on what they might get in court (which would be more like classic evaluative mediation), but on the personal concerns that the mediator has gleaned from each side after working with them for several hours?

This matters because we are trying to come up with a new set of Standards of Conduct for Mediators in Michigan. In trying to define the mediator’s obligation to provide a quality process, we want to discourage mediators from forcing parties into accepting the mediator’s opinion of how the case should settle. That’s what judges do; that’s not mediation. Mediators are supposed to be neutral regarding outcome. But we also recognize that, at the end of a long day in which the parties have built up trust in their mediator, parties may desire and appreciate hearing their mediator’s best advice regarding a settlement outcome. That may still be within the broader definition of mediation, because the mediator’s proposal is based on a good understanding of each party’s positions and interests, isn’t binding, and is offered at the parties’ request, not on the mediator’s initiative.

Or has the mediator in fact crossed the line into some form of arbitration when the mediator offers an opinion as to how the case should settle? This is the debate that Professor Leonard Riskin sought to resolve through his articles on mediator style where he developed what is affectionately known as the Riskin Grid (he told us he dislikes that term) to map out various styles of mediation, including facilitative and evaluative. He maintained that what he called “evaluative” or “directive” mediation is indeed mediation; but other scholars (e.g., Kim Kovach, Lela Love) argued that what Riskin called evaluative mediation is not mediation at all.

We are still having this debate in Michigan. “Purists” (of which I’m one) are leery about mediators telling parties where their case should settle; we would never do that. But many busy mediators in Michigan insist that parties hire them because they will give a reasoned opinion after hearing each side’s views, and that helps parties settle cases that would otherwise be at impasse. But how different is that from a one-man case evaluation? The case evaluation process in Michigan is clearly a form of non-binding arbitration; attorneys submit briefs and present a brief oral argument before a panel of three independent attorneys who determine a number that is supposed to settle the case. Parties can accept or reject the case evaluation award, as that number is called. Case evaluators spend only a few minutes on each case, and never meet the clients, so are those the distinctions between evalautive mediation and non-binding arbitration–that the mediator spends more time with the parties?

I’m just not sure where the line is.