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

Dispute Resolution Journal, Feb-Apr 2007 by Silveira, Mercédeh Azeredo da

20 E.g., Ala. Code of Ethics for Mediators (adopted by Order of the Supreme Court of Alabama, Dec. 14, 1995, and effective on March 1, 1996). See Standard 7(d) ("A mediator may discuss possible outcomes of a case, but a mediator may not offer a personal or professional opinion regarding the likelihood or any specific outcome except in the presence of the attorney for the party to whom the opinion is given."). Available online at http://alabamaadr.org/ flashSite/Standards/standards.cfm.

21 Ala. Code of Ethics for Mediators, Standard 7(d); Kan. Sup. Ct. R. Relating to Mediation, Rule 901 ("The attorneymediator defines the legal issues to the parties only in the presence of all parties in the matter"). Available online at www.kscourts.org/ctruls/adrruls.htm.

22 As one commentator said, a facilitative mediator is not apt to remedy a substantive power imbalance between the parties by giving the weaker party helpful factual or legal information. Samuel J. Imperati, "Mediator Practice Models: The Intersection of Ethics and Stylistic Practices in Mediation," 33 Willamette L. Rev. 703, 710.

23 Standards of Professional Conduct in Alternative Dispute Resolution (Symposium), 1995 J. Disp. Resol. 95, 100 (1995) (comments of Professor Leonard Riskin).

24 Robert B. Moberly, "Mediator Gag Rules: Is it Ethical for Mediators to Evaluate or Advise?," 38 S. Tex. L. Rev. 669, 670 (1997).

25 Imperati, supra n. 22, at 710.

26 Leonard L. Riskin, "Mediator Orientations, Strategies and Techniques," 12 Alternatives to the High Cost of Litigation 111 (Sept. 1994).

27 Id.

28 Imperati, supra n. 22, at 711; see also John W. Cooley, Mediation Advocacy 18 & 21 (2nd ed. 2002).

29 Rick Russel, Conflict Analysis in Relation to Mediator Strategy and Type, Consensus (January 1998), available online at /www.mediate.com/articles/ russelR.cfm?nl=9; John G. Bickerman, "Evaluative Mediator Responds," 14 Alternatives to the High Cost of Litig. 70 (June 1996) (stating that the mediator ought to "reduce a client's expectations by providing frank assessments of the risks").

30 Imperati, supra n. 22, at 711; see also Cooley, supra n. 28, at 18 & 21.

31 Imperati, supra n. 22, at 711.

32 See however Riskin, supra n. 26; Leonard R. Riskin, "Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed," 1 Harv. Negot. L. Rev. 7, 27-28 (1996). Riskin maintains that the techniques associated with evaluative mediation include proposing position-based compromise agreements, urging or pushing the parties to settle or to accept a particular settlement proposal or range.

33 Cooley, supra n. 28, at 18; this is a "combined facilitative-evaluative mediation."

34 Kimberlee K. Kovach & Lela P. Love, "Evaluative Mediation Is an Oxymoron," 14 Alternatives to the High Cost of Litig. 31 (March 1996). Professors Kovach and Love consider evaluative mediation to be an oxymoron. Kovach asserts that evaluation "invariably favors one side over the other" and necessarily compromises impartiality. Kovach and Love nevertheless concede that so long as the mediator does not take an actual position, as would a judge, arbitrator, or neutral expert, the mediator's conduct may be considered to be in compliance with the facilitative mediation model. Lela P. Love, "The Top Ten Reasons Why Mediators Should Not Evaluate," 24 Fla. State U. L. Rev. 937, 979-980 (1997). For example, they claim that "activities such as reframing, structuring of the bargaining agenda, probing of assessments and positions, challenging proposals, urging parties to obtain additional resources or information, suggesting possible resolutions (for the purpose of stimulating parties to generate options), and reality testing or checking, while admittedly evaluative, are appropriate as "essential parts of a mediator's facilitative role...." More generally, they believe that as long as the mediator does not disclose an opinion on the merits of the dispute, and thus does not "'answer' the question posed by the dispute," all other mediator opinions, assertions, challenges, and actions are acceptable in a facilitative mediation. Kimberlee K. Kovach & Lela P. Love, "Mapping Mediation: The Risks of Riskin's Grid," 3 Harv. Negot. L. Rev. 71, 75 (1998).