Many mediators are uncomfortable with the idea of discussing or presenting evaluations. However, when parties reach an impasse, they often want the mediator to play an active role. In these cases, responsible use of evaluation is completely consistent with the goals of mediation. Mediators should provide an evaluation only if there is an insurmountable settlement gap that arises from the parties’ widely divergent views of what will happen if the case doesn’t settle. Evaluation is not a substitute for other essential mediation tools. It is a last step, but in many cases skipping that step means missing the sole opportunity for settlement. The primary risk of evaluation is the potential loss of perceived neutrality: the party who is the “loser” in the evaluation may come to view the mediator as an adversary. Mediators who offer evaluations need to be careful and skillful. Here are some strategies mediators can use to reduce the risks of evaluation and increase the parties’ receptiveness.
Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 Alternatives High Cost Litig. 62 (1992).