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Benefits and dangers of mediation evaluation.

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Vol. 15, No. 3
March 1997
CPR Institute for Dispute Resolution
Alternatives 35
Benefits and Dangers of Mediation Evaluation
By Dwight Golann
Most cases settle eventually. If they are
resolved quickly, the parties can avoid
large legal fees and serious disruptions
to their lives. At the same time, there
are traps in attempting to settle early.
Some are substantive: A litigant may
need discovery in order to assess its
case, or may hope to improve its bargaining position by winning a skirmish
in court.
Parties also have broader reasons for
fighting, such as the wish to maintain a
warrior reputation. Still, many negotiating impasses involve genuine disagreements about legal merits, and lengthy
discovery leaves the parties close to where
an experienced lawyer would have put
them at the start. In such cases, early
settlement makes sense.
First of Two Parts
There is a tactical problem, however:
Parties worry that even mentioning
settlement will hurt their bargaining
position, suggesting that they are too
eager to reach agreement. That is, the
%imp factor.”Trial lawyers, who believe
that they are hired for their reputation
as fighters, are often concerned that
raising the issue of settlement will hurt
their clients’ confidence in their toughness and loyalty.
This client-relations issue was
brought home at a CPR Institute for
Dispute Resolution-sponsored conference at Harvard University.As a speaker
talked about the virtues of mediation,
a grizzled lawyer sitting next to me whis
pered, ‘This is all very fine, but when
my clients come in the door, they have
steam coming out their ears. If I mentioned ADR, they’d fire me and hire
somejerk who said he’d hang the other
guy’s **** on the wall. What I do is
Dwight Golann is pffasor @Law at Suffolk
University and a member of CPRS Training
Faculiy. Some of the ideas ptsented in this article were deue@ed 4 Mav& Aaron and a p
pear in Chapter 10 @MediatingL.egaloisputes:
Effective Strategies for Lawyers and Mediators
(Aspen Law & Business, 1996),for which
Golann, who edited and mote signijicant portions of the book, was c o w i n w of the CPRAnnual Book Award discussed m page 42.
humor ‘em, wait a few months, and
send them some bills. Then I can talk
sense!
”
Reasons to Propose Evaluation
One way to deal with these problems is
to ask for a neutral evaluation. A litigator can present a neutral assessment as
a sign of confidence, saying, in essence,
‘You believe in your case; so do I. So
let’s ask a neutral person for an opinion. I’ll listen to what they say, and so
will my client. I’m willing to put my arguments to the test. Are you?”
Moreover, the fact that one asks for
an evaluation does not always mean that
the process will be confined to legal i s
sues. Good mediator/evaluators will
look for and treat hidden barriers to
settlement, as well as merits issues. In
some cases, then, an advocate can pursue a “Trojan Horse” strategy, proposing an evaluation but priming the
neutral to mediate as well.
An evaluation can therefore be an
effectiveway to reach settlement. There
are two key issues that arise for anyone
considering this technique. Part one of
this two-part article examines when a
mediator should use evaluation.Part two
next month will discusshow the process
should be structured for best results.
Evaluation Benefits
Some of the pluses and minuses of
evaluation are evident to any experienced practitioner, while others are
quite subtle.
Merits4ased Barria. Evaluation has the
greatest impact on merits-based barriers to settlement. When lawyers or clients hear that a respected neutral
disagrees with their predictions of victory, their confidence is likely to be
shaken. They ask themselves why the
evaluator has come out differently than
they did, and in doing so may focus on
facts or an adverse precedent that they
had ignored or slighted.
Litigators also can use evaluation to
educate unrealistic members of their
own team about trial risks. Evaluation
may be useful even when both sides are
fully aware of their weaknesses: After
listening to an evaluator explain how a
particular point affected his or her as-
sessment,litigants better appreciate the
risk that a court will see the same holes
in their case.
Evaluations also motivate litigants to
give each other new data. Despite years
of discovery,parties often come to settlement talks ignorant about key facts in
their case. As they compete to persuade
the evaluator,litigants are motivated to
fill in gaps, making everyone’sinformation more accurate.
Process Obstacles. Apart from its impact
on the merits, evaluation has the potential to deal with certain kinds of process obstacles to agreement, although
not necessarily more effectively than
mediation. Cases sometimes fall off the
“radar screens” of senior executives,
leaving litigators without settlement
authority. Or a particular trial lawyer
or insurance adjuster may simplybe too
busy to focus on a file. Evaluation can
be staged to be a dramatic event, and
the knowledge that “an opinion will be
handed down” used to persuade key
decision makers to pay attention to the
case. The fear of losing an evaluation
also may motivate stubborn disputants
to compromise.
Thus, for example, in an early neutral evaluation program in one federal
court, neutrals reportedly assess cases,
then use their undisclosed opinions as
levers to induce parties to mediate.
Evaluationsalso can be helpful when
a negotiator must justify his or her decision to an outside supervisor or constituency group and fears being
criticizedfor giving away too much. The
fact that a respected person has recommended a compromise outcome provides excellent cover in such situations.
If bargainers become locked in an impasse because of confrontational tactics, evaluation can provide a different
kind of cover:The negotiatorscan stress
their disagreement with the opinion,
but at the same time use it as an excuse
to make the concessions they know are
necessary to restart the bargaining.
Psychological Obstacles. Although case
evaluation is supposed to have nothing
to do with emotions, it can in some limited circumstanceshelp overcome even
(continued on following page)
36 Alternatives
Mediation Evaluation
(continuedJiom p m i o u s page)
psychologicalbarriers to settlement. If,
for example, a party wants a “day in
court” or to make a symbolic point before it will settle, the opportunity to
argue before a respected neutral person and hear his or her opinion may
satisfy this need,
Going through an evaluation also
can help litigants overcome certain
cognitive barriers to decision making,
such as “selectiveperception” (the tendency of people to form an initial picture of reality and then unconsciously
screen out any information that does
not fit their preconceived views). A
skilled evaluator can explain an opinion using visual aids and other devices
that help disputants “see”for the first
time the strength of the evidence
against them.
Evaluation Dangers
Skewed Cyrinions. Evaluations also have
very real dangers,both for advocatesand
their clients. The most obvious of these
is that the evaluator may give an unrealistic opinion. A skewed result can put
“stars in the eyes” of an opponent, or
even one’s own client, making adversaries less willing to compromise.
Thus, for example, in CPRs model
mediation videotape, after the mediator reluctantly gives an opinion as to
the likely court outcome on one issue,
he finds that although the loser be-
CPR Institute for Dispute Resolution
comes more willing to make a new offer, the winner reacts by attempting to
renege on its prior concessions (the
case eventually settles).
Indeed, regardless of whether it is
skewed, an evaluation often effectively
ends the negotiation process: Once a
neutral has opined about the “right”result in a case, it is very difficult for a defendant to offer more or a plaintiff to
accept less than the evaluator’snumber.
A flat evaluative opinion thus resembles
a take-it-or-leave-itoffer from the neutral.
Advocatestend to think that the prob
lem of skewed opinions occurs because
some evaluators are unskilled. This may
be true. But there are also distortions
that seem to be inherent in a quick, informal process. Evaluators,for example,
rarely see witnessestest.@. Although they
can usually talk to individual parties and
partially assess their credibility, they are
not able to meet the other witnesses or
see anyone cross-examined. Still, evaluators usually review the key documentary evidence and hear attorneys’
arguments.
These features of case evaluation
have two related effects, which might
be termed “diminished impact” and
“meldedcredibility.”First, the witnesses
and documents that the evaluator does
see directly tend to take on a heightened importance as compared with
those witnesses whose testimony can
only be described.
Second, since the evaluator cannot
judge the demeanor of absent witnesses
Vol. 15, No. 3
March 1997
or see them perform under fire, they
all tend to seem similarly credible. Differences in persuasiveness turn on the
evaluator’s assumptions about certain
types of witnesses, and on how well the
summary the neutral hears fits with the
evidence that he or she sees directly.
Before electing to evaluate, then, a litigator should think carefully about how
each side’s case will appear from the
restricted perspective provided by the
evaluation process.
Neglect of Other Barriers. All this, of
course, assumes that the focal point of
evaluation-disagreement over the legal issues in a case-is what is keeping
the parties apart. Often the merits are
the least of the problem. As every experienced litigator knows, many disputes are driven by other issues, such
as personality clashes, hidden links between a legal case and other disputes,
and symbolic concerns. Unresolved
feelings such as grief or anger (the
“steam coming out their ears” mentioned in the above anecdote) can also
dominate a party or an advocate’sdecision making. These issues are legally
irrelevant, and so are rarely addressed
by pure evaluators.But they often have
more impact on settlement decisions
than any argument made by a lawyer.
In fact, by focusing everyone’sattention on purely legal issues, evaluation
makes it more likely that non-merits
problems will be ignored. If, for ex(continued on page 4 7)
ABOUT T H E CPR INSTITUTE FOR DISPUTE RESOLUTION
ORGANIZED BY PROMINENT CORPORATE
COUNSEL, T H E CPR I N S T I T U T E FOR
DISPUTE RESOLUTION has become a leader in
developing uses of private alternatives to the costly
litigation confronting major corporations and public
entities. The membership of CPR, a nonprofit organization, consists of more than 500 large companies,
leading US. law firms, academics and judges.
TO ITS MEMBERS, CPR OFFERS EXTENSIVE
BENEFITS AND SERVICES, including research
access to CPR’s unique ADR database; training and
a complete library Of ADR practice tools
and model procedures; and semi-annual conferences
for CPR Sustaining Members.
Would you like further information about CPR membership? If so, please complete the following form:
Name
Organization
Title
Address
Telephone
Return to: Elizabeth McGahan, Vice President-Membership
and Administration, CPR Institute for Dispute Resolution, 366
Madison Avenue, New York, NY 10017. Telephone: (212) 9496490. Fax: (212) 949-8859.
Vol. 15, No. 3
March 1997
[They] said, rVo, we don’twant to mess
aroundwith that. We don’twant to even
say it.” Good. I did an oped piece in
the [NewYork] Daily News [last September]. ..,the president said, ‘We’lldo itthe bipartisan commission.”
No, not because I wrote it. Because
it is a terrific idea. And it is going to
be done.
You know, there’s an intensely practical aspect to all of these developments
for all of us lawyers. Government is being reinvented wherever possible. It’s
learning the lessons of business, and
part of that process will be to emulate
the ADR experience that you are developing in the private sector.
There are hundreds of smaller ques
tions that can be handled through
other adaptations of alternate approaches. State dispute resolution offices are springing up everywhere.
Department of Justice has appointed
an ADR specialist. Our clients will be
involved in these interfaces. Some of
us will be mediators. There’ll be new
jobs created in government for people
who do ADR and who are good at. So
that’s business, that’s work, that’s practical. So it makes good old-fashioned
common sense to know more about
ADRs many possible applications in
the public sector.
But there’s another reason, a last
reason, and this is my favorite reason
for concentrating on this subjectas lawyers. After all, the brickbats and the
jokes about lawyers over the years of
our history, I’m afraid that even some
of us have begun to believe the popular verdict of about our character. And
we seem tempted to lower our sights
accordingly.
But it’s nevertheless still true that
without the law and lawyers, old-fashioned lawyers, this miraculous idea
called republican democracy, that became the world’s most successful political and social experiment, would
neither have been born nor survive.
Certainly we lawyers have the right to
provide for ourselves and our families what we feel we need to prosper.
And certainly we have the duty to help
our clients every honest way we can.
That’s our basic charge as lawyers.
But consistently with that, lawyers
have always understood themselves to
Alternatives 47
CPR Institute for Dispute Resolution
have a broader mission as well. We‘ve
known it since Cicero. We said that a
country does not educate people in
her laws and allow them to be lawyers,
as if she expected no help from them
in larger matters. From the very beginning, people understood that people
who know and can interpret and use
the law, are people of power and influence. It is the law, after all. That keeps
the miracle together.
Because of our education, our skills,
our experience, the place we hold in
our society, we have always been the
ones who provided most of the leadership. We have always been among the
most successful, the most influential
of citizens. And we’ve used that power
generously, since the birth of this nation. We helped to design it. We helped
to secure it. We’re helping to lead it,
and here with the skills and perspectives of ADR, I believe we have another
chance to help. And I think we ought
to make the most of it. Thank you for
having me.
&
Mediation Evaluation
(continued from page 36)
ample, the parties have been reluctant
to make the compromisesneeded to keep
the negotiation process moving, propos
ing an evaluation is likely to stop the bargaining entirely,at least in the short run,
sincepeople will rarely make painfd compromises while they have hope that an
evaluator will vindicate them. Similarly,
if one side is suing primarily to inflict
punishment on the other, then predictions of the outcome at trial will have very
little impact. When such obstacles exist,
facilitative mediation is required; going
to evaluation merely increases everyone’s
frustration,and often heightens the barriers to settlement.
Damaged Confidence in the Mediator. If
an evaluation is done by the same person who is mediating the case, there is
a risk that the process will hurt the
mediator’scredibility.Evaluation is particularly dangerous at the outset of the
process, before the parties have developed confidence in the neutral. If the
loser in an evaluation comes to view the
mediator as an adversary, both sideswill
be robbed of his or her assistance from
that point on. Thus if an advocate wants
AjlGT~MmioCwnno~scvcml
questions, the lasr ofwhich dcnlt with investing Social sSnr@yfinds in the stock
market. The folbwing were his closing
thou@:
3ociaI Security is more thanjust a pension plan. It takes care of widows, it
takes care of children, it takes care of
disabled people, so there are a lot of
functions to it. So some form of the
government, in a carefully regulated
way, taking some of that money and
gettinga return in the private market,
I like.
“Howyou do it, though, is a very
big challenge. How should you do it?
ADR Put a group of experts together?
Sit them down like the Greenspan
Commission and figure out a plan.
Now they did one commission on S e
cial Secmity*but it was a kind of ‘pick
your favorite position.’ OK, now you
have favorite positions-three or four
of them. Now have somebody who’s
very good at mediation,very good at
compromise, sit down and work out
the best possible plan that you can that
does privatization at minimum risk.”
...
a neutral to evaluate an issue and then
facilitate the negotiations, he or she
needs to plan the process’s evaluation
component carefully.
In sum, evaluation should be thought
of like the so-called “Allen”or “dynamite”
charge that is used to spur hungjuries to
agree: It should be used only when necessary, and after less risky methods have
been tried without success.
Issues to Consider Before
Evaluating
Before resorting to evaluation, both
inside counsel and trial lawyers should
ask themselves these basic questions:
Is one of the key factors blocking a
settlementin the case really a good-faith
disagreement about the legal merits, or
some other issue that will respond to
evaluation?If not, the process will not
be effective.
Are any of the most serious dangers
associated with the use of evaluation
present? if so, it is not worthwhile.
Is it clearly necessary to use evaluation? If not, wait before employing this
powerful but dangerous tool.
I?;Part IZ next month, the author discusses
how to structure an eualuation.
i
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