The Top Ten Reasons Why Mediators Should Not Evaluate

Abstract

The debate over whether mediators should "evaluate" revolves around the confusion over what constitutes evaluation and an "evaluative" mediator. An "evaluative" mediator gives advice, makes assessments, states opinions—including opinions on the likely court outcome, proposes a fair or workable resolution to an issue or the dispute, or presses the parties to accept a particular resolution. The chapter discusses ten reasons that demonstrate that those activities are inconsistent with the role of a mediator. The reasons include: the roles and related tasks of evaluators and facilitators are at odds; and evaluation promotes positioning and polarization, which are antithetical to the goals of mediation; ethical codes caution mediators—and other neutrals— against assuming additional roles. They also include: there are insufficient protections against incorrect mediator evaluations; evaluation abounds: the disputing world needs alternative paradigms; and mediator evaluation detracts from the focus on party responsibility for critical evaluation, re-evaluation and creative problem-solving.

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