Proposing a New ADR Service: Mediated Evaluation
Sometimes, the traditional forms of alternative dispute resolution (ADR) don’t always neatly address the needs of parties. The gaps help explain the recent trend in the ADR community to combine dispute resolution procedures into one seamless service. For example, we’ve seen mediators transition to decision-makers with med-arb, and with arb-med, arbitrators actively assist parties in settling their cases.
Another concept that could fit well into this environment is mediated evaluations. Say, for example, parties want a deeper merits evaluation than would typically occur in traditional mediation. At the same time, they do not want a formal evaluation or a non-binding decision that might result in an expert determination, mock trial, or arbitration. Those parties may benefit from having the evaluator assist them in reaching a final settlement.
Here’s how mediated evaluations could work:
First Stage: Case submissions
In the first stage, each party would submit an initial written statement of their position, with relevant documents, to each other and the Mediation Evaluator (ME). For significant or high-value cases, the parties could elect to have either a second ME or a panel of three MEs. Within 15-30 days, each party would submit a reply statement to the opposing party’s statement, again with relevant documents.
Over the next 15 days, the ME would read the submitted materials. After reading them, the ME could request additional documents or ask for clarification or further explanations of the submitted material. At this point, each party would have the option to request a separate confidential evaluation of their respective position vis-à-vis the opposing position. Or both parties could agree for the ME to issue a joint confidential evaluation to both parties simultaneously. In either case, each party could receive valuable feedback on their position, which could help determine their course of action.
Second Stage: Case evaluation
The second stage of a mediated evaluation would focus on the case’s merits. Depending on whether the parties requested a separate or joint evaluation, the ME would issue confidential reasoned findings and determinations to the parties based on how an arbitrator or other decision maker would likely rule. Seeing these findings would be like a student getting a sneak peek at how a teacher would grade her essay. Does it need more work? Or is it solid and polished?
Third Stage: Mediating the evaluation
After considering the evaluation, each party would decide whether to consult with the ME privately ex parte or jointly with the other party regarding the evaluation. This step is a chance for the parties to probe the evaluation’s conclusions and raise any potential factual errors or flaws in legal reasoning. The substance of all ex parte private meetings and communications between the ME and a party would be strictly confidential unless expressly authorized otherwise by the affected party. Assuming the parties do not settle, the ME would remain available to all parties to negotiate a resolution.
ADR is founded on the proposition that there are better ways to resolve disputes than the traditional legal system. But ADR is not static. It continues to evolve to meet the needs of parties. Mediated evaluations are just the latest example.
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