The thesis of this essay is that when mediators try to resolve a controversy by providing their analysis fo the legal - or other- merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral's judgment, award or opinion to determine or jump-start a resolution. That add-on activity to mediation should be called by its proper name. This essay will not review the many reasons that a single neutral combining the roles of facilitator and evaluator is problematic, since that has been done extensively elsewhere.' Instead, in part one, we highlight the advantages of calling "mediation plus evaluation" a mixed process. In part two, we discuss whether mediation should be allowed to metamorph into an evaluative process for certain case types. In part three, we respond to the contention that virtually every act of an intervener is "evaluative" and hence proscribing mediator evaluation is impossible.
Lela P, Love,
ADR: An Eclectic Array of Processes, Rather than One Eclectic Process,
2000 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2000/iss2/5