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To Opine Or Not To Opine - That Is The Question

Posted By Deborah Blevins, Monday, April 16, 2018

How do we balance the core principle of self-determination with the mediation style of Neutral Evaluation? In practice, this is the hardest line for me to walk as a mediator. And I wonder – how do other people handle it?

In my opening remarks, when I go over the two styles of mediation offered in the mediation consent form, I usually try to distinguish those styles by saying something like this:

“Do you want to know what I think? There is a way to mediate where I never say what I think. If we are not all together, I will just take your own ideas and arguments back and forth to each other. That is Neutral Facilitation. In Neutral Evaluation, I do that, but I also will tell you what I think, to the extent you want to know. Sometimes people ask me questions based on my experience, like how long might something usually take? How much does it usually cost? How are other cases like this settled? And if I can answer based on my experience I will. But if I tell you what I think, it is not binding on you in any way. It is just my opinion, and you don’t have to listen to it. I’m only always right when I’m at home, anyway.”

And then everyone laughs, and we go on. But in the middle of the mediation, in the hard part of helping parties negotiate a deal, I sometimes feel the weight of influence on my shoulders. If I let it slip off me and onto the parties, I fear I have done them a disservice. So, I say again: “Remember, you don’t have to listen to me. This is up to you.”

What are your experiences as a mediator, or as an attorney or party participating in a mediation? Have you seen this done well? Not so well? Please share your stories.

Tags:  mediation  mediator  Neutral Evaluation  Neutral Facilitation  self-determination 

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