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

Silveira, Mercédeh Azeredo da

Current views of mediation, the mission of the mediator and the debate over mediators providing legal advice.

A sine qua non of alternative dispute resolution (ADR) is the parties' right to self-determination, which in mediation involves the ability to select the mediator and decide whether to agree to a settlement of all or some of the disputed issues. Mediators, lawyers and scholars agree that compliance with the mediator's duty to remain impartial during and after mediation is crucial both for the process to succeed and the parties' rights to be protected. By complying with the duty to remain impartial, the mediator contributes to the betterment of the practice of mediation. As one commentator noted, "mediator impartiality instills trust, enables the parties to collaborate and share information with the mediator and other parties, protects mediation agreements from subsequent challenges, and helps prevent abuses of the process. In addition, an appearance of impartiality promotes public confidence in the fairness of the process."1

The mediator's duty to remain impartial is one facet of the more general duty to conduct the mediation fairly. Mediators have a continuing obligation, both before and during the mediation, to disclose actual and potential conflicts of interest as they arise.2 A great deal of work has been done by the International Bar Association (IBA) on the types of conflicts of interest that must be disclosed. However, there is less agreement about what impartiality means in general and how the obligation to remain impartial restricts the behavior of mediators. Clearly, at a minimum, mediators must appear to be, and actually be free from bias against or toward any party. In other words, a mediator is not allowed to support one party against the other.3 But does the impartiality requirement also restrain the mediator from offering potential solutions to settle the dispute because any solution would likely be somewhat more favorable to one side than the other? Does it also restrain the mediator from informing the parties about their rights and obligations because doing so could somewhat benefit one party and disadvantage the other?

This article examines current views of mediation and the mission of the mediator. It also looks into the hotly debated issue of whether providing legal advice is compatible with the mediator's duty to remain impartial.

Definitions of Mediation and Impartiality

Some define mediation as "a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making."4 Professor Carrie Menkel-Meadow and her co-authors define mediation as "a process in which an impartial third party acts as a catalyst to help others constructively address and perhaps resolve a dispute, plan a transaction, or define the contours of a relationship."5

An effective mediator helps the parties move toward the contemplation of possible solutions and an eventual settlement.6

Impartiality means "freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual."7 The American Arbitration Association (AAA)/American Bar Association (ABA) Model Standards of Conduct for Mediators further specify that "a mediator should not act with partiality or prejudice based on any participant's personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason."8 The practical implications of the mediator's duty to be free from favoritism or bias and to assist all participants to the mediation have been the subject of debate.

The above-stated definition of impartiality undoubtedly prohibits a mediator from imposing a particular settlement agreement on the parties, or compelling them to reach an agreement of their own. But some believe that it does not preclude a mediator from informing the parties of their respective rights and obligations. Others disagree, arguing that "a mediator must not assume the role of legal counsel to either party or both of them jointly [and] must not give advice as to what the law is."9

It is important to recognize that, regardless of whether mediators are permitted to provide legal advice, even the most neutral mediator-that is, a mediator who strictly complies with the duty to refrain from supporting one party against another and imposing an opinion on the parties-inevitably influences the process while trying to move the parties towards a settlement.10 This influence occurs as a result of the mediator's role in:

* establishing the agenda of the mediation;

* managing the communications between the parties during private caucuses;

* managing information exchanges;

* reframing and restating the parties' claims, needs and interests in order to ensure that the mediator understands them;

* determining the seating arrangements at the mediation table;

* setting time frames for various stages of the mediation or for "homework" assignments;

* managing doubt (encouraging doubt as a way to moderate a party's position); and

* deciding when to convey offers and counteroffers, 11 among other activities.

Even if no agreement is reached at the end of the mediation, the mediator is not freed from the duty to remain impartial and must keep confidential whatever was learned during the proceedings. If that were not the case, the parties would be unlikely to negotiate freely and openly during mediation proceedings. They would be concerned about protecting their legal positions in future court or administrative proceedings.

In order to ensure the integrity of the mediation process, the AAA/ABA Model Standards of Conduct for Mediators provide that "a mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law."12 One commentator has also pointed out that "the mediator must not be involved in any process after the mediation [has] ended which would require the mediator to evaluate the parties or to reveal information obtained during mediation."13

Does Impartiality Mean Substantive Neutrality?

Some scholars and mediators infer from the term "party self-determination" that the parties are free to reach the agreement into which they desire to enter, whether "fair or not, in accord with the applicable law or not, [and] in accord with true facts or not."14 These commentators conclude that mediators bear no responsibility for the fairness of a mediation settlement. They maintain that a mediator merely acts as "a host and chair," and as a "master of communication and translator."15

But others see more than party self-determination as the goal of mediation. They identify other important goals, including fairness of the outcome. 16 This is especially so in the family mediation context where there is often greater economic power on one side. One commentator has pointed out that "lawyer-mediators may be more likely to experience greater tension between the need to preserve self-determination of the parties and the desire to intervene more directively to achieve a legally fair and equitable result."17

What should a mediator do when an unrepresented party heads down a path toward an unfeasible, unfair, or inequitable resolution of a disputed matter, toward an agreement that could adversely affect that party's legal rights and obligations? In such circumstances, practitioners and scholars agree that in order for the parties to make an informed decision, the mediator may recommend that unrepresented parties seek independent legal counsel and advice from "other professionals on technical aspects of the dispute."18 What would the solution be if all parties were represented by counsel? Should the mediator's views on the parties' positions or the proposed settlement or both be shared with the parties, whether they have legal representation or not?19

State rules on this issue vary. Some states allow the mediator to give legal advice, but only in the presence of a lawyer.20 Other states prohibit mediators from giving legal advice altogether but allow them to define legal issues in the presence of all parties.21

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

I believe there are circumstances in which providing an evaluation does not violate the principle of self-determination. Accordingly, in those circumstances, providing legal advice is not in conflict with the mediator's neutrality. While it is undisputed that "impartiality implies that the mediator is committed to a process which aids all parties," according to Loretta Moore, "this does not mean ... that the mediator should not raise questions for the parties to consider in reaching a realistic, fair, equitable, and feasible resolution of their disputed matter."37 Furthermore, whether providing legal advice (for instance, by offering an assessment of the parties' positions and/or suggesting settlement options) is compatible with the mediator's duty to remain impartial depends on the circumstances of each case and the parties' expectations of the mediation.

Regarding the latter point (i.e., whether the mediator should be entitled to provide legal advice), this article will look at four situations.

* First, the parties are moving toward a solution that optimizes benefits for all but is not strictly in compliance with the law.

* Second, the parties are moving toward a solution that does not optimize benefits for all (whether or not that solution would be fair in regard to the law).

* Third, the parties have reached an impasse.

* Fourth, the parties ask the mediator to evaluate their positions.

As to the situation in which the parties are moving toward a solution that optimizes benefits for all, but is not strictly in compliance with the law, the mediator clearly must refrain from opining on the terms of the contemplated solution. Otherwise, the mediator would be undertaking the role of a referee, judge, or arbitrator, rather than that of a facilitator of the parties' communication. That action would violate the principle of self-determination of the parties. More specifically, by opining on the terms of the contemplated solution, the mediator would be dictating to the parties what he or she believes is a proper interpretation of the law. Doing so would compromise the integrity of the mediation process.

Regarding the situation in which the parties are contemplating a solution that does not optimize benefits for all-whether or not that solution would be fair under the applicable law-I believe that a mediator who would provide advice regarding the parties' rights and obligations would be trying to redirect the parties' negotiation in support of the party who would have been prejudiced by the envisaged solution. Again, this would compromise the integrity of the mediation process.

I believe that the mediator might, at most, encourage the parties to imagine a solution that would maximize benefits for all, and provide legal advice only as to how such a solution could be implemented. However, even in this case, the mediator may not opine on the parties' respective rights and obligations.

The merit of mediation resides in providing the parties with opportunities to come up with solutions that are agreeable to all sides-solutions that are often not available in court or arbitral proceedings. According to Menkel-Meadow and her coauthors, "[c]ustom-tailored outcomes ... can create more value for parties than the standardized remedies provided in adjudicative forums."38 Without supporting either party's claims or assessing either party's rights, the mediator may encourage the parties to find a solution maximizing benefits for all and help them shape their agreement.

I agree with Lawrence Susskind's "activist evaluative approach," according to which the "activist mediator" is not neutral but rather nonpartisan with regard to the outcome. This is to say, the activist mediator is "an 'advocate' of the 'best possible outcome,' though he or she maintains a posture of disinterest toward the parties individually."39

Let us now consider the third and fourth situations, the former involving the parties having reached an impasse and the latter involving the parties requesting guidance from the mediator. These are exceptional situations that I believe warrant the mediator conveying to the parties, without supporting or defending one party against the other and without imposing any single point of view, an assessment of the risks that they would incur in a litigation or arbitral procedure in order to help them communicate and reach an agreement.

In impasse situations, helping the parties explore options provides them with a last chance (before moving on to litigation) to settle the dispute in a fashion satisfactory to them all. In cases involving an impasse, I agree with proponents of evaluative mediation that "disputants need help in understanding the law and how their case is affected by the law, and that lawyers want mediators to provide direction regarding appropriate settlement figures."40

Finally, in cases in which the parties ask the mediator to provide evaluative assistance, I believe that such activity should be authorized. The foundation of the mediator's duty to remain impartial is the right of the parties to self-determination. Consequently, if the parties seek an evaluation by the mediator because they believe that this support would help them reach an agreement, "the principle of self-determination calls for allowing evaluation, not prohibiting it."41 Furthermore, as Robert Moberly has said, "without sacrificing neutrality, a mediator's neutral assessment can provide participants with a much-needed reality check." He states, and I agree, that "sophisticated parties ought to have the freedom to choose the mediation style that best suits their needs.... Free choice-and not regulation-is the best course."42

Conclusion

One may draw two conclusions from the above understanding of the role and mission of the mediator, and in particular from the fact that there are only a limited number of precisely defined circumstances in which a mediator may provide legal advice without being held in breach of the duty to remain impartial.

The first conclusion pertains to the issue of whether a mediator should be a layperson as opposed to an expert in the legal or technical fields in which the dispute has arisen. At first glance, one might believe that in order to preserve mediator neutrality, a mediator should be a layperson. One might indeed argue that the analysis of an expert is more likely to lead the latter to take positions. Nevertheless, close examination leads to the conclusion that in order to bring mediation to a successful outcome, the mediator ought to have sufficient legal and technical knowledge in the area of the disputed issues.43 The reason is that a mediator who has this kind of expertise is more likely to be able to help parties who are at an impasse or have asked the mediator for evaluative assistance to intelligently analyze the unresolved issues and devise potential solutions. Clearly, the mediator must at all events be well trained in how to maintain an attitude of impartiality.

The second conclusion is that so long as the parties agree on the terms of settlement, the mediator should be prohibited from opining on the merits of those terms and from attempting to influence the parties by maintaining that the solution envisaged is not the best or the fairest under the applicable law. The primary goal of mediation is not to achieve fairness in a legal sense. The merit of mediation resides in the fact that the parties may devise a solution with which they are all satisfied, even if it is not strictly in keeping with each party's rights and obligations or would not be available in court or arbitration. Fairness in mediation means satisfying the parties rather than strictly complying with the law.

A mediator may try to reconcile "legal" fairness- that is, compliance with the law-and a settlement acceptable to all only by raising questions for the parties to consider and by encouraging them to explore options that would maximize benefits for all. Only when a mediation might fail may a mediator become more than a facilitator and provide the parties with an assessment of how their legal positions might fare in litigation or arbitration. This should only be allowed as a last resort in order to help the parties reach an agreement satisfying them all and to which they all will freely adhere. Even in this case, however, it is important to stress that the parties are not compelled to subscribe to any proposals set forth by the mediator.

ENDNOTES

1 Michelle D. Gaines, "A Proposed Conflict of Interest Rule for Attorney- Mediators," 73 Wash. L. Rev. 699, 702. See also Leda M. Cooks & Claudia L. Hale, "The Construction of Ethics in Mediation," 12 Mediation Q. 55, 62-63 (1994); Christopher W. Moore, The Mediation Process: Practical Strategies For Resolving Conflicts 15 (1st ed. 1986); John D. Feerick, "The Lawyer's Duties and Responsibilities in Dispute Resolution: Toward Uniform Standards of Conduct for Mediators," 38 S. Tex. L. Rev. 455, 462-463, 466 (1997); Jacqueline M. Nolan-Haley, "Court Mediation and the Search for Justice Through Law," 74 Wash. U. L.Q. 47, 66-71 (1996); Leonard L. Riskin, "Toward New Standards for the Neutral Lawyer in Mediation," 26 Ariz. L. Rev. 329, 354-359 (1984). See also Poly Software Int'l v. Su, 880 F. Supp. 1487, 1494 (D. Utah 1995) (explaining that the success of mediation depends greatly upon the ability of the mediator to maintain neutral stance while preserving confidences); McEnany v. West Del. County Community Sch. Dist., 844 F. Supp. 523, 532 (N.D. Iowa 1994) (involving a challenge to the validity of a mediation settlement on the ground that the mediator was biased through past representation of party by his law firm).

2 See Model Standards of Conduct for Mediators (Model Standards), originally developed in 1994 and revised in 2005. The Model Standards were adopted by the participating organizations- the American Arbitration Association (AAA), the American Bar Association (ABA), and the Association for Conflict Resolution.

The Model Standards were developed to serve as a general framework for the practice of all types of mediation. Accordingly, they serve as a guide for the conduct of mediators and as a source of information for the mediating parties. They also promote public confidence in mediation.

3 See Jamie Henikoff & Michael Moffitt, "Remodeling the Model Standards of Conduct for Mediators," 2 Harv. Negotiation L. Rev. 87, 102-103, according to whom, for the sake of the integrity of the mediation process, the mediator must at all times be free from bias toward the parties and their interests, as well as the outcome of the mediation.

4 See the Preamble to the Model Standards, supra n. 2. See also John D. Feerick, "Standards of Conduct for Mediators," 79 Judicature 314 (1996).

5 Carrie J. Menkel-Meadow et al., Dispute Resolution-Beyond the Adversarial Model 266 (Aspen 2005).

6 Moore, supra n. 1, at 327.

7 Model Standards of Practice for Family and Divorce Mediation (2001), Standard IV.A.; Society of Professionals In Dispute Resolution, (SPIDR, now called the Association for Conflict Resolution), Making the Tough Calls: Ethical Exercises for Neutral Dispute Resolvers 9 (Anne B. Thomas ed., 1991). See also Henikoff & Moffitt, supra n. 3.

8 Model Standards (2005), Standard II.B.1, supra n. 2.

9 Tom Arnold, "Mediator Ethics Issues in Mediation," C976 ALI-ABA 701, 706, about the codes or "standards" of ethics for mediators.

10 Moore, supra n. 1, at 327.

11 Id. at 327-333.

12 Model Standards (2005), Standard V.A., supra n. 2.

13 Karen A. Zerhusen, "Reflections on the Role of the Neutral Lawyer: The Lawyer as Mediator," 81 KY. L. J. 1165, 1171 (1993). Zerhusen has "instituted a practice of working with a professional who will be able to provide the court with the information desired, after an independent investigation, without compromising the mediation process." Nevertheless, I believe that even such cooperation with a professional, allowing the latter access to information disclosed during the mediation process, might influence the parties' attitude during the negotiations and thus compromise, to a certain extent, the mediation process.

14 Arnold, supra n. 9, at 710.

15 Menkel-Meadow et al., supra n. 5, at 266-67.

16 See, for example, ABA Family Law Section, "Standards of Practice for Lawyer Mediators in Family Disputes," 18 Fam. L.Q. 363, Standard 4.c (1984); Thomas Bishop, "The Standards of Practice for Family Mediators: An Individual Interpretation and Comments,"

17 Fam. L. Q. 461, 467 (1984); Ill. 17th Cir. Ct. R. 4(C) (imposing on the mediator the duty to achieve a fair agreement). 17 Loretta W. Moore, "Lawyer Mediators: Meeting the Ethical Challenges," 30 Fam. L. Q. 679, 687 (1996).

18 Id. at 688. This could include suggesting that the unrepresented party also consult with an accountant or real estate appraiser.

19 This raises the issue of whether a lawyer/mediator who gives opinions would be considered to be giving legal advice and therefore engaged in the practice of law in the jurisdiction where the mediation is being held, even though the mediator does not represent either party. If giving advice does constitute the practice of law, the next issue is whether the mediator is authorized to give advice in the jurisdiction where the mediation is being held. This is an important issue in the United States.

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).

35 Marjorie Corman Aaron, "ADR Toolbox: The Highwire Act of Evaluation," 14 Alternatives to the High Cost of Litig. 62 (May 1996). It is interesting to note that a quantitative analysis, conducted in 2004, using a database of 645 cases mediated at the Equal Employment Opportunity Commission, indicated that where facilitative techniques were used, the parties were more likely to perceive the mediator as being neutral or fair. E. Patrick McDermott & Ruth Obar, "'What's Going On' in Mediation: An Empirical Analysis of the Influence of a Mediator's Style on Party Satisfaction and Monetary Benefit," 9 Harv. Negot. L. Rev. 75, 98.

36 Maureen L. Laflin, "Preserving the Integrity of Mediation Through the Adoption of Ethical Rules for Lawyer- Mediators," 14 Notre Dame J.L. Ethics & Pub. Pol'y 479, 498; see also Aaron, supra n. 35, at 62.

37 Moore, supra n. 17, at 689.

38 Menkel-Meadow et al., supra n. 5, at 270.

39 Laflin, supra n. 36, at 499; John Forester & Lawrence Susskind, "Activist Mediation and Public Disputes," in When Talk Works: Profiles of Mediators 328, 329, 331, 332 (Deborah M. Kolb et al. eds., 1994).

40 Murray S. Levin, "The Propriety of Evaluative Mediation: Concerns about the Nature and Quality of an Evaluative Opinion," 16 Ohio St. J. On Disp. Resol. 267 (2001).

41 Moberly, supra n. 24, at 672.

42 Bickerman, supra n. 29, at 70. See also Larry Watson, A Time and Place for Evaluative Mediation, paper delivered to the American College of Civil Trial Mediators in Orlando, Florida (March 1, 1997).

43 Lawrence Susskind, "Environmental Mediation and the Accountability Problem," 6 Vt. L. Rev. 1 (stating that "to be effective, [a] ... mediator will need to be knowledgeable about the substance of the disputes and intricacies of the regulatory context within which decisions are embedded"). This article deals specifically with environmental mediation. However, I believe that the principles cited ought to be extended to other types of mediation.

By Mercédeh Azeredo da Silveira

The author is an attorney-at-law at Schellenberg Wittmer in Geneva, Switzerland, specializing in international arbitration. She holds an LL.M. from Columbia Law School. Ms. Azeredo da Silveira can be reached by phone at +41 (0) 22 707 8000 or by email at Mercedeh.daSilveira@swlegal.ch.

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