Mediators using non-binding evaluations and making settlement proposals

Tue 25 May 2021

By Dr Xue BAI


Mediators using non-binding evaluations and making settlement proposals is one of the most common forms of mixed mode dispute resolution. This is also an area where there appear to be considerable differences due to cultural impact and ethical considerations.

CIBEL Centre member Associate Professor Kun Fan, together with Véronique Fraser, Vice-Dean Delegated for Strategic Development and Associate Professor, Faculty of Law, University of Sherbrooke (Canada), as co-chairs of Working Group 3 (WG3) of Mixed Mode Task Force, explore this topic further in their latest article, titled “Mediators Using Non-Binding Evaluations and Making Settlement Proposals”.

In this paper, the authors review the concepts of “mediation” and “conciliation,” “facilitative” and “evaluative”. They argue that while there are recommendations in literature to distinguish mediation and conciliation for reasons that go beyond the terminology, these concepts are not meant to be applied rigidly. In particular, the authors explained:

“The level of intervention of the neutral depends on the party expectation and process design. It is particularly important in cross-cultural contexts. The same term can mean different things for different people. Parties and neutrals should not assume that their expectations or perceptions are shared by the other side. It is crucial to communicate and share expectations in order to develop proper process design at the beginning of the process.”

WG3 provides a framework for assessing a mixed mode within a mediation process. It states forth that mediators should explicitly discuss process design with parties, in light of WG3’s Grid Regarding Party Autonomy in Mediation and Conciliation and the potential impact of a mediator’s intervention on parties’ self-determination regarding substance and process. Moreover, WG3 shows how a mediator can align and adapt mediation techniques with the parties’ process choices regarding substance and process.

This article is published by the New York State Bar Association. You can read the full text of the article here.