Tom Arnold is of counsel and a former name partner of Howrey Simon Arnold & White LLP in Houston. He is a former president of each of the A.A.White Dispute Resolution Institute, the American Intellectual Property Law Association, and the Executives’ Association of Houston, and is coauthor of a patent ADR treatise and four other intellectual property law books.
Some of the people against mixing evaluation and advice into a mediation are those most skilled in getting settlements without evaluation and advice. Some of the persons who are for mixing evaluation and advice into a mediation are, by personality and low questioning skills, neutrals who tend to skip the careful testing questions for the parties and counsel, and arrive at their own conclusion and try to push the parties toward it.
Let’s go back to the beginning.
From about 1987 to about 1990, essentially all U.S. mediation students were taught the classical concept of pure facilitation by the mediator. That is, no evaluation or advice in mediation. “Early neutral evaluation” was thought of as a separate ADR process, or several alternative ADR processes, such as moderated settlement conferences, summary jury trials, etc., and for some reason not to be mixed with mediation. The bias this way was in part because it had a different label, and the different name served to be a place to keep the mediation process pure.