Impartiality v. Substantive Neutrality: Is the Mediator Authorized to Provide Legal Advice?

Facilitative v. Evaluative Mediation

Globally, there are two models of mediation dividing the legal community: for some, mediation is a facilitative process; for others, it is an evaluative process.

Based on the understanding that the parties to mediation have the fundamental right to selfdetermination, adherents of facilitative mediation maintain that the mediator's primary mission is to enhance communications and assist the parties to reach a settlement. This mission does not include giving opinions or personal views on the merits of the case or offering legal advice where there is a power differential between the parties.22 Some adherents of facilitative mediation believe that "lawyer-mediators should be prohibited from offering legal advice or evaluations."23 They argue that mediation should be "pure" and "limited to helping the parties communicate, identify and address all the negotiated issues, and develop proposals acceptable to all parties."24 In other words, mediators should lead the process by drawing the parties' attention to the objective of reaching a mutually beneficial solution.25

Adherents of evaluative mediation see things differently. They defend the view that the mediator is entitled to "provide some direction as to the appropriate grounds for settlement-based on law, industry practice or technology."26 They also believe that a mediator who has substantive knowledge and training in the relevant field of the dispute27 can opine on the relative merits of the case28 at any time during the mediation, "whether subtly or overtly,"29 and help the parties assess their risks.30 Finally, according to one commentator, "an evaluative mediator who believes that injustice is being done may intervene to direct the settlement in a fashion consistent with the mediator's notion of justice."31 This is a critical element distinguishing evaluative mediation from facilitative mediation.

Mediators and scholars who vigorously support evaluative mediation argue that to be effective, mediation requires the mediator to assess the strengths and weaknesses of the parties' positions in private caucuses so that the parties can predict the outcome were the case to be tried in court. Evaluative mediators nevertheless agree with adherents of facilitative mediation that the parties should never feel coerced into a settlement and when they do agree to settle, they should all be convinced that the agreement reached is beneficial to all,32 even though it represents a compromise.

Some adherents of facilitative mediation concede that the mediator may, at most, offer an opinion on how the case should settle if, near the close of the final session, no resolution of the dispute has been achieved.33 However, even they are opposed to mediators providing legal advice or expressing an opinion about the merits of the dispute, since that could be or appear to be a departure from the duty to remain impartial.34 For example, Professor Marjorie Aaron argues that even if an evaluation were even-handed, there is always the risk that it could be perceived as partial by a party.35 Maureen Laflin has pointed out that "should such an appearance take hold, the reality of the mediator's impartiality becomes irrelevant for the perceived loss of neutrality undercuts the integrity of the process as the party disgruntled by the evaluation comes to view the mediator as an adversary."36