EVALUATIONS IN MEDIATION
 and Marjorie Corman Aaron
Evaluation is a controversial issue. Some
mediation theorists believe that the technique has no place in "true" mediation, a purely facilitative process in
which parties are left free to make their own judgments about the merits of a case without interference from the
 We hold a different view. Evaluation is a legitimate weapon in the mediator's
arsenal, one that can be either effective or explosive depending on how and when it is used.
II. Evaluation Defined
What is evaluation? It is a process in which a
neutral expresses an opinion as to the likely outcome or value of a legal claim or defense were it to be
adjudicated. Evaluation can focus on either a single issue or on the overall result in a case. It can be expressed
in ranges ("the damages could range from $25,000 to $75,000"); numeric probabilities ("40% chance"); or as a
precise number ("a $100,000 case"). An evaluation can be expressed with certainty ("The plaintiff will win ... ")
or studied vagueness (" I have some doubts about... "). Evaluation is sometimes hard to distinguish from "reality
testing." Almost all mediators are willing to reality test-that is, to question disputants about the strengths and
weaknesses of their cases. In this role, a mediator acts as a devil's advocate, pushing the disputants to become
more realistic without completely revealing his or her personal opinion about the merits. However, as mediators
become more and more familiar with the facts and arguments, it is almost inevitable that they will form views about
how a court would rule on a case. Parties, not expecting mediators to be potted-plants, are aware that the
judgment-formation process is going on.
Mediators may be less successful than they think
at hiding their opinions about the merits. Reality testing is a spectrum in which the line between mere testing and
evaluation is not always clear. For example, a phrase such as "What are your thoughts on the causation issue?" is
unlikely to be controversial. But such commonly-asked questions as "Do you think there's a problem on causation?,"
"What would you say in response to their argument on causation?," "Don't you have a causation problem here?" or
"You don't think that's an issue?" are increasingly likely to be interpreted as evaluative opinions. Even if the
language used by a mediator is scrupulously neutral, his or her feelings about the strength of an argument may well
show unconsciously in facial expressions and body language. It is likely that litigants perceive evaluation going
on in many situations where a mediator would describe behavior as "reality testing." The fact that evaluative input
of this nature is common in mediation makes it important for mediators to understand how to do an evaluation
properly, and for lawyers to know when to request that such techniques be applied.
III. Benefits and Dangers
Like most other tactics, evaluation has both
potential benefits anddangers. In the case of evaluation, however, both the risks and the advantages are relatively
An evaluator's primary goal is to change
litigants' assessments of the strength of their adjudication alternatives. Often both sides in a legal dispute
honestly believe that they are likely to win in court. Mediators find that when parties put their predictions in
terms of percentages, their forecasts often total 150% or more; that is, each side thinks that it has a much better
than even chance of prevailing. Given these clashing predictions, it is not surprising that even good faith
negotiations often reach impasse. The causes of such misjudgments are complex. Psychologists have demonstrated, for
example, that people tend to form perceptions of situations quickly, then unconsciously ignore any information that
contradicts their view, a phenomenon called selective perception. People's judgments are also influenced by their
roles in litigation, an effect known as advocacy distortion. For example, in an experiment at Harvard Law School,
students were given identical files describing an auto accident, then asked to evaluate the plaintiff's chance of
winning in court. Those assigned the role of lawyer for the accident victim assessed her chances of prevailing at a
mean of 65%. By contrast, students who were given the same case file, but told that they represented the defendant
insurance company gave the plaintiff only a 48% chance. Similar discrepancies appeared in the students' estimates
of the damages the plaintiff would recover if she won: "plaintiffs" placed the damages at a mean of $264,000, while
"defendants" projected only $188,000. Harvard Business School students asked to carry out the same study showed
very similar biases. These kinds of advocacy distortions are nearly universal.
Evaluation can cut through litigants'
misjudgments about the merits of a case. When disputants hear that a neutral person, after studying the facts and
listening to the arguments, disagrees with their predictions of victory, they are motivated to look again at the
case and ask what the evaluator has seen that they have not. Evaluation can thus help disputants overcome the
impact of selective perception, advocacy bias and other factors that distort parties' assessment of the merits. An
evaluation can also satisfy psychological needs. It may give litigants the emotional experience of having a day in
court, in which they can present their arguments to a neutral person. If bargainers realize that concessions are
necessary, but do not want to move from entrenched positions without having a rationale, an opinion can provide the
necessary psychological cover. Similarly, insurance adjusters, government officials, and others who must answer to
supervisors and constituencies outside the mediation, often welcome an evaluation because they can use it to
deflect after-the-fact criticism of their decision to settle. Finally, evaluations can help to resolve internal
disagreements within a bargaining team, for instance by assisting a litigator who sees serious risks in a case
persuade an unrealistic client of the need to settle.
Unfortunately, evaluations pose dangers that may
outweigh their benefits. First, an evaluation may freeze the bargaining process. Once the parties to a mediation
know that an evaluation is coming, they are likely to stop negotiating: After all, why confront painful decisions
about concessions when the neutral will soon vindicate one's position? But once the evaluation is given, it may be
treated as a "take it or leave it" offer. After a respected outsider has stated the "right" or "fair" result in a
case, it is very hard for a defendant to offer more, or a plaintiff to accept less, than the number the evaluator has set. The strength of
this "take it or leave it" effect is inversely proportional to the confidence of the negotiators in themselves and
in the evaluator. The more concerned a bargainer is about being second-guessed by a client or supervisor, the less
willing he or she will be to accept a result less favorable than the evaluation.
Equally significant is the potential impact of
an evaluation on the mediator's credibility with the litigants. A neutral's greatest asset in bringing about a
settlement is the rapport and confidence that he or she develops with the parties and their counsel. As long as
litigants see the mediator as an honest, neutral and competent facilitator of the process, they are willing to
listen to tough questions, accept coaching about their bargaining tactics, and consider settlement recommendations
that require painful compromises.
If, however, a mediator delivers an evaluation
too quickly or in the wrong way, the "losers" in the evaluation are likely to react badly. A party, its lawyer, or
both may decide that the neutral has "gone over to the other side." Perhaps, they think, the neutral has been duped
by clever arguments, or seduced by promises of future business. Indeed, if the evaluator disagrees with both sides,
as is quite possible, everyone can be left angry. Once this happens, even the most innocent comment or gesture by
the mediator will be filtered through feelings of suspicion and antagonism. A badly-done evaluation can destroy the
mediator's power to influence the losers, and perhaps everyone, in a case.
There are less dramatic dangers as well.
Evaluators focus on the legal merits and may fail to address less obvious barriers which may be frustrating a
settlement. If the problem, for example, is that a key decision maker in any settlement is not at the bargaining
table, an evaluation is unlikely to uncover the issue. If the obstacle is a party's unresolved feelings of grief, a
lawyer's anger, or other strong emotions, an evaluation, with its emphasis on legally-relevant facts, will not deal
with it. In general, evaluation does not address the hidden issues that often drive lawsuits. More seriously,
evaluation tends to hide these issues because it focuses the disputants solely on the legal merits of the case.
Evaluation, in other words, often "solves" the wrong problem and, by doing so, obscures serious hidden causes of
All this said, the right kind of evaluation,
done at the right point and handled in the right way, can be the ingredient that breaks a seemingly hopeless
IV. How to Give an Effective
A. Whether to Evaluate
Our basic advice about whether to evaluate is
"only if necessary." Unless required to break an impasse, evaluation's inherent risks, make it unwise. The
fundamental diagnostic questions that a mediator should ask in every dispute are the following:
• What obstacles are preventing the parties from settling this
• What meditative strategies are most likely to
overcome these barriers and bring about a settlement?
In most cases, the barriers that are frustrating
agreement, such as procrastination, the need to vent arguments and emotions, poorly conducted positional
bargaining, lack of information or hidden psychological issues, do not relate to the parties' view of the merits.
Specific meditative strategies are available to address these issues,
 making evaluation inappropriate.
In some situations, however, even after other barriers have been
diagnosed and treated, the major obstacle to settlement remains the parties' (or their lawyers') inability or
refusal to accurately assess the value of their trial alternative. Even pointed reality testing has not (or is
unlikely to) overcome the effects of selective perception, advocacy bias and other psychological forces that
distort litigants' perceptions.
 In such situations, a mediator's only remaining options may be either to
conduct an evaluation or admit defeat. If evaluation is the BATL (Best Alternative to Litigating),
 there's no harm in the attempt.
B. When to Evaluate
As should be clear from this discussion, we
believe in delaying an evaluation until as late in the mediation process as possible. Waiting serves several
important purposes. First, it allows the mediator to explore fully the other possible obstacles to settlement. If,
for example, a key issue in a dispute is a party's need to express grief over a loss or anger at a business
partner, deferring an evaluation allows the mediator to discover the issue and work on it. This kind of exploration
is much more difficult after an evaluative "verdict" has been handed down. For a discussion of these and other
barriers and specific strategies to address them,
Even if the problem is limited to the legal
merits, it does not follow that an evaluation is always required. The cause of the parties' differing assessments
of the merits may be that one side lacks key information; if so, a mediator's initial response should be to arrange
a data exchange. It: instead, the problem is that one side fears that a settlement would create a precedent, a
neutral should focus on confidentiality guarantees. In our experience, it is usually possible to solve many
merits-related problems without the need for an explicit evaluation by the mediator.
A second reason not to evaluate quickly is that
a mediator will have more time to build and strengthen the parties' trust. As the process goes forward, parties and
lawyers get to know the mediator much better on both a professional and a personal level. In formal sessions, the
participants are able to watch the mediator in action and observe how he or she handles challenges. During informal
conversations and telephone contacts, the parties and counsel begin to get to know the mediator as a person. In
this way, an effective mediator can gradually build up the disputants' trust and confidence. The mediator can then
draw on this reserve to cushion the shock of an unwelcome opinion on the merits. Also, the mediator will have the
opportunity to learn more about the parties in order to phrase his or her evaluation in terms that will be most
palatable to the audience.
In addition, when a mediator prefaces the
evaluation with questions and discussion of the merits, the parties often become more realistic about their cases,
narrowing the scope of any opinion that the mediator must offer. The litigants may also realize that weaknesses in
their case which they had hoped to keep hidden are in fact apparent to the other side. Finally, the disputants see
that the mediator has heard them out and is seriously grappling with the facts and arguments they raise. The
participants also learn that the mediator is raising their strongest arguments with their adversaries. As the
mediation progresses, then, the disputants appreciate both that the mediator is giving them a fair hearing and has
"done the homework." They are able to come to terms with the fact that the holes in their case are known.
There is one final "when" issue: Should a
mediator obtain the consent of the parties before going forward with an evaluation? At one level, this is an issue
of contract. Some mediation agreements require neutrals to get the assent of all parties before offering an
evaluation, while other forms leave the issue to the mediator's discretion.
 A mediator owes participants the obligation to discuss process issues. But if,
after this is done, the parties choose to remain in the mediation, it is best that the neutral retain the
discretion to evaluate if necessary to stimulate a settlement.
Our overall advice about when to give an
evaluation is this: Evaluate as late in the process as possible. As a rule of thumb, never do so until at least the
first round of caucuses is completed. Only consider evaluating after you have had a reasonable chance to diagnose
and treat other obstacles to agreement, using less risky tactics such as reality testing, and have talked with the
disputants about your intentions. In our view, evaluation should usually be the final and almost never the first,
arrow in a mediator's quiver.
V. What Standard to Apply?
The most common standard used in evaluations is
one of prediction: The neutral attempts to forecast how an arbitrator, judge, or jury would resolve certain issues
or the entire case, if the party opted for a binding decision.
This predictive standard may seem self-evident,
but in practice it is not. Mediators sometimes focus on how they personally would decide a case. This is
irrelevant, however, since neutrals rarely serve as judges in their own unsuccessful mediation's.
 This standard is also dangerous because it puts the mediator into the position
of personally rejecting one or both parties' arguments, making it even more likely that they will come to view him
or her as an enemy.
Another standard mediators sometimes apply is: "What will it take
to settle this case?" In other words, given the negotiation dynamic, what package of terms is likely to be
minimally acceptable to everyone in the dispute? If, for instance, one side is stubbornly unrealistic about the
likely court outcome, a "What will it take')" opinion might bend the proposed terms toward that view in order to
secure agreement that is easier for parties to accept.
Although there is nothing inherently wrong with
this approach, a serious problem arises when disputants think that they are hearing a pure merits-based evaluation
but instead receive a "What will it take?" recommendation. For a mediator to offer a settlement recommendation
under the guise of a legal evaluation is both unethical and capable of creating serious practical problems when
parties discover that they have been misled.
Evaluators should give their best "straight"
prediction of how the likely decision maker would resolve an issue or case. However, when the litigants explicitly
agree to receive a settlement recommendation rather than a merits evaluation, then a "What will it take?" opinion
VI. Structuring the
The first issue for a mediator to consider is
whether he or she will perform the evaluation, or suggest a person outside the process. There are many advantages
to an outsider's evaluation. First, it distances the mediator from the process, greatly reducing the risk that a
disappointed disputant will hold the results against the mediator. Second, the mediator and lawyers can select an
evaluator with the credentials most likely to impress the parties, without concern about balancing evaluative
credentials with facilitative skills. If, for example, the parties would be most swayed by a prediction from an
eminent jurist, they can retain a former chief justice without worrying about whether he or she knows how to
A third advantage of going outside is that it
allows the mediator to focus energies on a single role: that of facilitator. Fourth, it solves the nagging issue of
what a mediator who also evaluates should do with any information that may have been disclosed on a confidential
basis in caucuses.
There are practical difficulties, however, with using an outside
evaluator. First, unless the two roles are assigned at the outset, making arrangements for an outsider to come in
will usually require adjournment of the process and disrupt its momentum. When parties are allowed to cool off,
they may harden their positions. Second, retaining an outsider is more expensive than having the mediator give an
opinion, and many cases will not support the cost and delay of additional briefing. Finally, even with the
mediator's assistance, the parties may be unable to agree on who should perform the evaluation. For these reasons,
the parties almost always request that the mediator take on the task.
A. Limit the Issues -
The next question is how much of the case to evaluate. Novices often assume that an evaluation must cover the
entire dispute, but this is not so. The legal issue driving the parties' impasse may be a relatively narrow one
(for instance, will the liquidated damages clause of a contract be enforced?). If so, there is no need to
evaluate other issues on which the parties are closer to agreement. Indeed, if the evaluator's view of those
other issues differs from that of the parties, evaluation would stimulate disagreement rather than resolve
B. Piggyback Whenever Possible - A corollary to not evaluating issues
unnecessarily is to build on the parties' opinions as much as possible. A plaintiff, for example, may have a
realistic take on liability but an inflated view about damages. If so, it is more effective for an evaluator
to say that he or she will accept the party's liability percentage "for argument's sake," although perhaps
noting mild disagreement with it, then press the evaluator's opinion about the likely damages. It is easier
to change a person's mind on one issue than two, and an evaluator's "concession" on one point will often
induce disputants to accept his or her views about other, more controversial issues in the case.
C. Think about Who Needs to be Influenced
- One's tendency is to assume that
evaluations are done solely for people in the mediation room. This is often not true. The real cause of an
impasse may be a decision maker in a distant city who has not participated in the mediation or felt its
impact. Or negotiators may be hesitating out of fear that a decision to compromise will expose them to
criticism from supervisors or outside constituencies. If the problem is absent decision makers, the
evaluation can often be used as an event to get their attention, and sometimes their actual presence at the
scene. There is something about the idea of even a non-binding "verdict" being handed down that brings a case
onto the radar screens of persons who have felt too busy to pay attention to it before. If the issue is fear
of being second-guessed, and the potential critic cannot be brought to the mediation, it may make sense to
put the evaluation in the form of a written opinion that a party can take to his or her constituency or place
in a case file. If an evaluation is to be used to convince persons outside the process, the credentials and
public reputation of the evaluator become more important than his or her personal qualities. In such
circumstances, a mediator will not be able to use the trust he or she has built up during the proceeding to
sell the result, and may want to select a third person whose resume will impress an absent decision maker.
Example: A mediator was working on a dispute
between a government loan agency and a borrower who had defaulted on his mortgage. As the mediation went forward,
it became clear that the loan foreclosure had been handled badly by the original lender, making it difficult now
for the agency, which had inherited the loan, to collect on it. Still, the agency refused to settle the case. In
caucus, the agency disclosed that it needed a letter from the mediator evaluating the case and endorsing the result
in order to settle. The agency was not willing to have the letter shown to the borrower; instead, it would be used
by the agency to convince a review board to approve the deal. The borrower's counsel agreed to these terms, the
mediator wrote the letter, and the case was settled.
.Choices in Effective Format - Before
undertaking an evaluation, consider what format will maximize its contribution to a settlement:
• What data will the evaluator receive? For
example, will the parties rely on existing documents or prepare special briefs? Note that special briefing is more
likely to be necessary if an outsider is brought in to do the evaluation.
• Do the parties need the feeling of having a
"day in court"? Will the evaluation have more weight if they are allowed to make formal arguments? If so, consider
conducting the process in a "moot court" format.
• Should the opinion be delivered in caucuses or
during a joint session? If it is delivered to the disputants in each others' presence, the losers may feel
humiliated; creating anger that will disrupt the process. If, on the other hand, the evaluation is presented in
separate caucuses, the disputants may suspect that the evaluator is delivering different opinions to the two sides.
We rarely ask for special briefing because it
would usually require adjourning the process. We also avoid "moot courts," because to hold, one risks elevating the
importance of an evaluation from impasse breaking tool to final pronouncement in a case. We also strongly favor
delivering evaluations in caucus. This is not in order to deliver different legal analysis or numerical evaluations
to each side. Rather, it is because evaluating in caucus allows us to use phrasing and arguments calculated
to help the listeners to accept our opinion. In caucus one can, for example, piggyback one's views on bits of
confidential information that party has shared. The mediator-evaluator could, for instance, concede that an
opposing witness might be lying as that party has been arguing but go on to say that the witness has a demeanor
that would impress a jury. Evaluating in caucus allows us to more frankly acknowledge strengths in each side's
arguments, and build on that foundation to deal with more controversial issues.
The problem of demonstrating that the evaluator
is delivering the samc opinion in each caucus is a real one. It can be addressed, for example, by writing a bullet
point form of the evaluation on a flip chart or notepad and carrying it from one caucus room to another. Putting
the opinion in writing has the extra benefit of giving visual reinforcement to unwelcome news and reduces
opportunities for the parties to engage in "selective perception" of the evaluation.
Consider Language, Culture and Commonality - A
mediator's choice of language, tone and cultural referents in presenting an evaluation will greatly influence
its impact on the parties. One's individual and cultural background is what it is. But a bit of chameleon
ship in style and manner can increase the persuasiveness of the opinion, particularly when its content is
critical. If, for example, one party (whose team may include a lawyer, expert and several client
representatives) is informal, given to slang and colorful metaphor, it may be effective to use that style in
their caucus. If the other party is more formal, deliberate and analytical, the mediator will do well to
choose a tone and language likely to resonate with that group. In short, this advice on choice of style and
manner is "When in Rome ... ," particularly when the substance of the message is relatively unfavorable. This
is another reason to present evaluations in private caucuses with each side.
Be Empathetic - Acknowledge the listening party's concerns
and arguments and why a result you see as likely or possibly may seem unfair or surreal. Predictions are not
pronouncements of right and wrong; you can actively listen to and reflect or empathize with a party's
feelings and responses.
Emphasize Differences in Perspective - It is sometimes difficult for disputants
to accept that someone who has the same information as they do nevertheless disagrees strongly with their
judgments. One defense is to emphasize that in doing an evaluation, you are not giving your personal opinion
about what is a fair resolution, but instead are predicting how other people whom the disputants have never
met (a judge or jury) would react.
We also note the special advantages of being
neutral. Because we are not arguing the case and have no personal stake in its outcome, we are free to think about
it from the perspective of an uninvolved person. It is difficult for disputants to admit that their judgment may be
distorted by their roles in the case (although they readily see that the condition affects their opponents and
perhaps their clients). Our practice is to mention the point but not to stress it heavily.
Distance Yourself from the Opinion - As we have noted, it is very important
that the mediator not become personally identified with an unwelcome opinion. One method of doing this is to
follow the guidelines set out above: empathize with the problem that this creates, note that you will never
sit in judgment on the matter, use the language of prediction, and so on. Another way for mediators to
distance themselves is to use the technique known as decision analysis. Decision analysis is a mathematical
technique that allows analysts to break down a case into a series of choices and chances (win on summary
judgment or not; win or lose at trial; recover a high, medium or low verdict, etc.). The case is then
"graphed out" in a way that lets the parties see the possible outcomes in the litigation and weigh the
probabilities of each one. Individual choices and chances are then multiplied out, yielding an overall
monetary value for the case. Decision analysis allows mediators to talk with disputants in a relatively
dispassionate way about what could happen if a dispute is adjudicated. It allows both the neutral and the
parties to "let go" of emotional arguments and consider litigation risks in a logical manner. Also, because
participants are asked to discuss and estimate the percentage likelihood of success on each issue before
calculating its impact on the case's overall discounted value, they may provide more honest assessments. For
this reason, decision analysis can be a constructive vehicle for discussing the parties' or the mediator's
Evaluations rarely end cases themselves. Rather,
they provide a strong "dose of reality" that helps break down differences in how the parties assess their
no-agreement alternatives. Assuming an evaluation is necessary; therefore, mediators need to think in advance about
how to use them to promote further negotiations: 1. Is reflection or consultation time needed? In simpler cases
where the decision makers are present, a mediator can give an evaluation orally and then ask for a new offer. But
when the case is complex, the results shocking to the listeners, or the evaluation calls for an offer outside a
negotiator's authority to settle, an adjournment will probably be needed. 2. What kind of bargaining should occur
after the evaluation? Who should make the next concession? Are inventive terms possible that would obscure or
cushion one side's defeat in the evaluation? Should the mediator make a compromise proposal, to some degree
influenced by evaluation results? If so, should the proposal be presented as a "mediator's proposal" basis that
allows each side to conceal its willingness to agree unless the other side has assented as welI?
(AAA HANDOOK ON MEDIATION, 2010)
Professor of Law, Suffolk University Law
Marjorie Corman Aaron
Professor of Clinical Law and Director, Center
University of Cincinnati College of
 Dwight Golann is a professor of
law at Suffolk University Law School in Boston.
He is an active mediator of legal
disputes and serves as a distinguished neutral for the
CPR Institute and panels iu Europe and
Asia. Professor Golann is the principal author of
MEDIATING LEGAL DISPUTES (2009) and
co-author of RESOLVING DISPUTES (2010).
Additional information is available at
 Marjorie Corman Aaron is
a Professor of Clinical Law at the Uuiversity of
Cincinnati College of Law and Director of its Center
for Practice. Also a mediator and
arbitrator based in Cincinnati, Ohio, she was
formerly Executive Director of the Program
on Negotiation at Harvard Law School and Vice
President and Senior Mediator at
Endispute, Inc. Ms. Aaron received a B.A. from
Princeton University and a J.D. from
Harvard Law School. She is the co-author of MEDIATING
LEGAL DISPUTES (2009), from
which this chapter is
 Some commentators believe that for
a mediator ever to evaluate raises ethical questions. For example, the Standards of Conduct for
Mediators promulgated by the American Arbitration Association and the American Bar Association, state
that "A mediator shall conduct the mediation fairly, diligently and in a manner consistent with
principle of self-determination by the
parties." The ABA/AAA standards do not say explicitly whether or not mediators are allowed to evaluate, but
the commentary to them states that "Mixing the role of a mediator and the role of a professional advising a
client is problematic ... A mediator should, therefore,refrain from providing professional advice" and
refers to the option of sending parties outside the process for a "neutral evaluation." For an interesting
discussion of the practice-ot~law issue, see Carrie Menkel-Meadow, Is Mediation The Practice of Law?; Bruce Meyerson,
Lawyers Who Mediate Are Not Practicing Law, 14 ALTERNATIVES 57,74 (June 1996).
 These findings are consistent with
the results of a long series of experiments showing that the roles people adopt in both litigation
and non-litigation contexts often impair their ability to analyze data accurately. See, for example,
Max. H. Bazerman, Negotiator
Judgment: A Critical Look at the Rationality Assumption, 27 AM. BEHAV, SCI. 211,220-22
 For a discussion of these and other
barriers and specific strategies to address them, see GOLANN ET AL., MEDIATING LEGAL DISPUTES
 For a discussion of other psychological
forces that can distort a litigant’s assessment of the legal merits, and methods to deal with them other than
evaluation see id.
 Our apologies to, Roger Fisher and
William Ury, the inventors of the concept of Best Alternative to a Negotiated Agreement, or "BATNA."
See R. FISHER, W. URY AND B. PATTON, GETTING TO YES (1991) pp. 97-106.
 For example, the model agreement
developed by the CPR Institute of Dispute Resolution requires that all parties assent before an
evaluation can be given, but the standard JAMS agreement leaves the issue to the mediator. The
American Arbitration Association has no specific rule on the subject, but as noted in note 3 the
ABA/AAAA STANDARDS OF CONDUCT FOR MEDIATORS can be read to define "neutral evaluation" as a process
separate from mediation.
 The exception, of course, is the
process known as "med-arb," in which the disputants consent to have the mediator render a binding
decision if they cannot reach agreement.
 One possible solution is for the
mediator to disclose that his or her assessment rests in part on "secret ammunition" confided by one
side. Among other things, this makes it easier for each party to understand the neutrals opinion.
 For an explanation of how decision
analysis can be used in mediation, see Marjorie C. Aaron, The Value of Decision Analysis in Mediation
Practice, II NEGOTIATION J. 123 (1995); M. C. AARON, Chapter 8 in MEDIATING LEGAL DISPUTES, supra n,
 The essence of a "mediator's
proposal" is that the mediator proposes the same package of settlement terms to all sides, but under
the ground rule that each side can tell the mediator in confidence whether the package is acceptable.
If so, there is a deal. If not, the rejecting party will never learn whether its adversary was
willing to compromise. This mediation process. format makes it easier for a party to explore a
compromise without endangering its bargaining position if an agreement is not reached.
by Dwight Golann and Marjorie Corman Aaron - 2010