“You know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”

– Athenian envoys in negotiations with Melos, as quoted in Thucydides, The Peloponnesian Wars.

The marketplace for mediation of litigated commercial disputes respects the reality of the quote above.

Gone is the utopian pablum once heard about balancing power between the sides.  The marketplace wouldn’t stand for it.  If a party feels that it has some power in the negotiation, why would it ever volunteer for a process designed to have that power taken away, or “balanced?”

As long as lawyers are duty-bound to provide clients with zealous advocacy within the bounds of law, we could never ethically submit a client to that kind of emasculation.  As long as the legal community is the marketplace for mediation services, mediation will accommodate, not distort, the reality of the litigating parties’ true relationship.

And that’s why there must be an evaluative component to mediation.  And it’s a good thing.  Only the evaluative mediator provides the lawyer with the help that lawyers need to protect client relationships and provide clients with the best possible representation.  It is only the evaluative mediator who prevents the strong from doing any more than they can, and the weak from suffering any more than they must.