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Most parties to insurance coverage disputes say they prefer to have the option to seek a mediator’s evaluation of the relative merits of their case. Usually, this means that the mediator will provide an appraisal of the merits of the party’s claims or defenses, the party’s likely prospects of prevailing on pretrial motions or at trial, or both. As discussed more fully below, the advantages of the evaluative mediator include:
(1) the mediator can offer an objective view of the merits of claims or defenses;
(2) the mediator can engage on substance and pose informed queries that spur parties to reevaluate their case, and;
(3) the mediator, if asked, and at an appropriate inflection point, can offer a well-informed “mediator’s proposal” that can better orient the parties and thus facilitate resolution.
By way of background, the “evaluative” approach in mediation is thought of as contrasting with a purely “facilitative” approach whereby the mediator minimizes discussion of the parties’ positions in favor of guiding the parties based upon their “interests” and the relative advantages of a negotiated settlement (compared to further litigation). While a purely facilitative mediator may be favored in matters, such as partnership disputes, in which the parties’ continuing personal or business relationship is paramount and could be harmed by “positional” dynamics, in insurance coverage mediations mediators’ reluctance to be evaluative under any circumstances sometimes means they lack confidence they have a deep understanding of the subject matter or the parties’ legal positions.
Parties who prefer a mediator with the ability to facilitate and provide an evaluative approach often recognize a benefit in obtaining an objective view of the case. The mediator has no stake in who wins or loses the litigation and thus can provide a fresh and neutral perspective – which is, in itself, valuable information. What is more, the mediator can ask probing questions regarding the merits. My usual technique for the most part is not to declare what the law is, but to query, for example, “how sure are you that the statute of limitations will apply to this claim, insofar as it’s deemed to be equitable in nature?” Substantive engagement by a neutral expert thus provides “value added” arising from the time spent in the mediation even if the case does not resolve in the mediation. It is similar to a consulting engineer’s view that a desired plant cannot be built as planned, but whose observations nevertheless contain expert content valuable in itself.
In addition, a mediator who has the ability (i.e., knowledge and experience) and the willingness to act evaluatively may sometimes ask if the parties wish the mediator to provide a “mediator’s proposal.” A “mediator’s proposal” is a dollar figure at which the mediator believes the case should settle. It should be based upon the mediator’s informed review and assessment of the parties’ legal and factual positions, which may be accompanied by empirical reference to jury verdicts or judicial decisions. (Two “procedural” notes: (a) when offering a “mediator’s proposal,” the mediator will tell the parties that unless both parties accept this figure, neither party will be told whether the other party accepted it; (b) mediators’ proposals should be offered, if at all, late in a mediation session). More often than not both parties do not immediately accept the proposal, but it nevertheless can foster settlement later, in an ensuing session or independently of the mediator. For this reason also, the “evaluative” mediator’s toolkit is larger, enhancing the ability to build a path to resolution.