Having replaced Stage 3 (mediator prediction)
with party evaluations of trial risk and benefits,
the mediation process can turn to the subject of
developing possible avenues for settlement. There
also can the mediator suggest different analytic
tools to clarify the conversation and improve
The evaluative processes described above are
intended to be a complete substitute for mediator
predictions. The mediator roles do not overlap. If
parties continue to need prediction, the mediator
• Keep party assessments of the case
distinct from mediator predictions – do
not mix the two.
• Make predictions only if the quality of data
provided to the mediation meets some
minimum level of adequacy and quality.
Where trial outcomes are highly dependent
on witness testimony, predictions should
be made cautiously if at all.
• Explain the change in role “I will end my role
as a neutral facilitator and change to that of
providing an advisory opinion.”
• State clearly that the prediction is based
only on the facts as presented to the
mediator, and that while it reflects the
mediator’s experience it may also reflect
his or her biases.
Experience shows that, when parties and counsel
are given the benefit of highly analytic and evaluative
mediative processes that do not include mediator
predictions, they are more than willing to take and
digest the data provided so as to make their own
predictions to be used in settlement. They leave
the conversation with a more clear understanding
of the conflict itself, the opposing parties’ view of
the conflict and a better understanding of their
own position. They are clearer about what will be
presented to the judge/jury/arbitrator and its
connection with the various potential outcomes if
the case were to go to trial. This data gives them a
great deal to consider when looking at their own
risks and benefits of litigation.
The parties’ own assessment of risk/benefits
resulting from a well facilitated joint session on such
is more valuable than the mediator’s subjective
outcome prediction – no matter how thoughtfully
prepared. This moves the power of resolution back
where it originated and where it belongs.
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