NFL Concussion Case to Mediation

I was of course pleased that the Judge Brody ordered the case brought by thousands of former NFL players concerning concussions to mediation.  See full article at http://www.nytimes.com/2013/07/09/sports/football/judge-orders-nfl-concussion-case-to-mediation.html?smid=pl-share   the article indicates many of the benefits of mediation.  However, once again it does not distinguish between evaluative and facilitative mediation and makes it seem that all mediation is evaluative.  In particular the last paragraph says, “Presumably, the judge is experienced and can give both sides an appraisal of the case from the perspective of someone who’s sat on the bench.”  As a mediator for almost 30 years, I prefer the approach of starting with facilitative mediation and only moving to evaluative as a last resort.   Facilitative mediations have more lasting results.  One must question in evaluative mediation who is doing the evaluation.  The Supreme Court consistently has 5 to 4 ruling.  If a Supreme Court Justice was doing evaluative mediation are you getting one of the 5 or one of the 4?  Is this really evaluation or directed negotiations?   I think it is impossible to predict what a court will do.  When clients have indicated to me that his or her attorney will predict what the court will do, I suggest they get a written guarantee that the attorney will pay if the court does not rule the way the attorney predicted.  Needless to say, no attorney has ever agreed!  The Judge gave the mediator two months.  I will be interested to see the results.

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