Bar News - October 19, 2012
Alternative Dispute Resolution: ‘What’s This Case Worth?’ When It’s Appropriate for a Mediator to Give an Opinion on a Case Outcome or Value
By: Dennis Ducharme
The vast majority of the 5,105 active members of the NH Bar Association were admitted after the 1987 adoption of Superior Court Rule 170, which made ADR mandatory in the Superior Courts.
Prior to its adoption, mediation of routine tort cases was the exception rather than the rule. Only "large" or "complex" cases were mediated with any frequency. Thus, most cases mediated in those dark ages were handled by relatively seasoned practitioners, and by a small universe of professional mediators.
When Rule 170 was adopted, hundreds of lawyers were trained as volunteers under the original ADR program and thousands of cases were mediated each year. Training for "Mediation 101" lasted 2 days, and the focus was on what was, at the time, considered to be the only appropriate method for mediation, so-called "facilitative" mediation. According to Melinda Gehris, of Hess Gehris Solutions, who has done most of the Superior Court mediation training for the last decade, that approach still holds. Newer mediators are taught a facilitative process.
In facilitative mediation, the mediator stays completely neutral, not only in the sense of not favoring one party over the other, but also in not interjecting his or her opinions regarding the value or potential outcomes of a case into the process. Those of us trained in the late 1980s and early 1990s were taught to never offer opinions on value or outcome in a mediation. Interjecting opinions on those topics is part of what is known as "evaluative" mediation.
Why Not Evaluate?
There are many good reasons to avoid the interjection of the mediator’s opinions into a case. Consider the mindset of one "old school" practitioner who volunteered regularly as a Rule 170 mediator under the original program. He did not want to be assigned two or three cases per day, in two- or three-hour time slots. He wanted five or six one-hour time slots because of his view that if the lawyers and parties did not accept his "advice" on what to do in an hour, they were not going to do it with an extra hour or two.
Consider that mindset and how it might affect a personal injury case where the pre-mediation advice of the plaintiff’s lawyer is to settle for any offer of $40,000 or above. What happens to that plaintiff’s expectations or faith in her counsel when the mediator says, "This case should settle for $60,000"?
Or the case I handled where the 22-year-old plaintiff had $125,000 in uncontested medical bills and a plausible, but less solid $700,000 claim for future lost earnings. The claim arose out of a case in which he was a passenger in a car, but I, as defense counsel had a legitimate liability defense that nobody was at fault. In that case, the insurer probably would have paid $350,000 to $400,000 to resolve the case and avoid the high end of the risk. The mediator was a retired judge, accustomed to deciding cases, and rendering opinions. The first words out of his mouth in group session were: "This is a million dollar case." The expectations of the plaintiff and his father were cemented, and the case tried to a defendant’s verdict.
When can Evaluation be a Plus?
Those examples might suggest that a mediator should never offer opinions, but they are extreme examples. When I am serving as a mediator, I see many cases in which it is clear that one or more parties are looking for input from me. In certain of those instances, I am willing to offer thoughts on value, or outcome, but only in the right way, and at the right time. "Evaluative" mediation, a process in which the mediator is still neutral in terms of favoritism, but offers insights and judgments as to the possible outcomes in a case, has its place with the right case and the right mediator. So when?
First, a mediator should never offer unsolicited advice of the type described in the examples above. Most lawyers assume that a mediation in the civil realm is going to be facilitative, not evaluative. Given that reality, there is no place for a mediator assuming that he or she is supposed to be evaluating a case unless asked to do so. Mediators should take the facilitative process – discussing the positions of the parties, asking questions, probing in search of middle ground, as far as possible, before considering a jump to the evaluative mode.
Second, evaluative techniques must involve all of the parties. A mediator should never find himself in the position of telling one side what a case is worth, or what he thinks about a substantive issue, without the other receiving the same information. Doing so truly does breach the obligation of neutrality to the parties.
Third, the mediator should only offer evaluative information after making clear to the parties that it is non-binding, that it is his evaluation, that others might offer a different one, and that the parties are free to reject the advice being given.
These are some common "invitations" I receive to evaluate, and the responses I give:
Question: "What’s this case worth?"
Answer: "You did not hire me for a neutral evaluation. I will not answer that question for you until we take the mediation as far as possible and then only will if we are close to a settlement and both sides ask me to give them a number."
Question: "What should my next offer/demand be?"
Answer: "I can’t tell you what your number should be, but my general view of negotiating is that the best way to move a case along is to make the biggest moves you can that don’t hinder your ability to achieve your ultimate goal."
Question: "What do you think Judge X will do with a motion in limine on that evidentiary issue we discussed in opening session?’
Answer: "I can’t tell you what I think about that issue unless both sides want to know and you need to assess the risks on that yourself unless the other side asks me the same question."
In summary, as a practitioner, it is best to assume that most mediators in New Hampshire have been trained primarily as facilitative mediators. Only seasoned mediators with more advanced training and experience have regularly used evaluative skills; at least appropriately. If you have a case in which you think some degree of evaluative input may be necessary, chose your mediator carefully, and be patient.
Allow the facilitative process to go as far as possible. Only if you are not closing the deal, and only if both sides buy in, is a move from the traditional facilitative process into a more evaluative approach appropriate.
Dennis T. Ducharme is founder of Ducharme Resolutions PPLC in Manchester, providing mediation and litigation support services. He is an experienced trial lawyer and mediator, and appellate attorney. Contact him at www.ducharmeresolutions.com.