Should Mediators “Evaluate?”

Here is a quote from a blurb that recently appeared in the International Chamber of Commerce webpage:

“..the benefit of mediation was seen as lying in the mediator’s ability to look beyond the polarised positions of the parties and find middle ground by analysing the parties’ positions and making each reflect on its own and the other’s position.”

Should a mediator analyze the parties’ positions and present the results of that evaluation? If so, when should the mediator do this?

These are important questions. Click here if you want to read the whole blurb.

Three lessons seem to emerge from this essay: First, it is important in highly technical disputes to hire mediators who have sufficient knowledge that they can perform an analysis of positions.

Second, how the mediator presents the evaluation is important. The most commonly accepted approach reported in the blurb was for the mediator to use “coaching questions.” With coaching questions the mediator helps the parties address the issues in new or alternative ways. This might be thought of as providing a new frame. Another approach to presenting the evaluation is through rhetorical questions such as, “Can you help me work through your suggestion?” or ” Can you tell me more about what you have said?”

Third, the author of the blurb seemed to suggest that mediators offering evaluations should use a “light touch.” The light touch is recommended because making direct recommendations or statements of evaluation tends to push the parties back toward their own positions.

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