Midstream Mediator Evaluations and Informed Consent

Anyone who dares to explore the field of informed consent in alternative dispute resolution quickly comes to appreciate the quagmire of differing expert viewpoints; of conflicting or silent codes of conduct, statutes, and rules; of divergent definitions of processes; and of the complexity of the topic generally. Consider the following list of potential dangers in mediator evaluation: * An evaluation might jeopardize the actual or perceived neutrality of the mediator, which in turn jeopardizes a mediator's continued usefulness; * An evaluation might interfere with party self-determination (insofar as parties bow to a neutral's expertise and opinion rather than exercising their own judgment), detracting from the focus on party responsibility for critical analysis and creative problem-solving; * An evaluation made on the basis of incomplete or limited information or based on inadequate research can be highly speculative and more likely wrong compared to an evaluation of a neutral specifically hired for that purpose; even if the evaluator is right, a subsequent arbitrator, judge or jury may not reach the same conclusion; * Evaluation focuses the outcome on the criteria used by a third party (e.g., legal norms) when other norms-such as family or religious values-may be more important to the parties; * An evaluation based in some part on information obtained in caucuses, without the opportunity for rebuttal by the other side, rests on inferior-or at least different-evidence than the evidence that an arbitrator, judge, or jury would have; * An evaluation may end negotiations by polarizing the parties and entrenching their positions, in effect prolonging rather than shortening disputes where the party favored by the evaluation becomes more entrenched and the disfavored party loses confidence in the mediator; * An anticipated evaluation will importantly affect mediation representation and party negotiation, making it less likely that parties will be candid with one another and the mediator.\n Negligence law would apply a "reasonableness" standard.