In a meeting with a group of mediators last night, one mediator told us that he believes it is important to suggest to the parties what he believes would be a “fair” settlement amount. Most of the rest of us were skeptical of this approach. Someone pointed out that the mediator often doesn’t have enough information to determine what a fair settlement might be, as sometimes one or both of the parties is withholding information that could materially affect the outcome. Others suggested that it is not the mediator’s job to try to arrive at an objectively “fair” result, only a result that is satisfactory to the parties.
I think it can also interfere with a mediator’s effectiveness to attempt to impose a solution on the parties. I generally prefer not to provide my own opinions or evaluations, or make mediator’s proposals, unless both parties press me to do so. A number of times in which I have represented parties in mediations, I have seen the process break down when the mediator attempts to force his own evaluation of the case onto a resistant party. I think it is better to encourage the parties to rely on their own counsel’s evaluation of the case, of course also taking into consideration a differing evaluation by opposing counsel. A third opinion by the mediator may be just too much information. If the mediator’s suggestion is merely an average of the parties’ evaluations, it is unnecessary, as an average can be easily calculated. On the other hand, if the mediator’s suggestion is closer to one side’s offer than the other’s, the mediator may appear to be favoring that side.
Of course we must deal with the larger philosophical question of what exactly constitutes fairness, anyway. Does fairness merely represent a prediction of how the court would likely treat the dispute? Or does fairness reach for a more abstract concept of a just result? Does fairness attempt to maximize the satisfaction that each side should receive from settlement of the case, both in terms of approximating each side’s goals, and in terms of minimizing each side’s pain? In determining fairness, how does one place a value on the psychic benefits of achieving peace, and of avoiding the costs and stresses of continued litigation? My view is that these questions may all be worth raising with the parties in a mediation, but they are probably too difficult for the mediator to answer for them. They are questions that the parties must answer for themselves.