Most litigators know that mediation is an informal process involving a neutral third party. But the most effective attorneys understand that mediation is fundamentally negotiation in the presence of another person and evaluative mediation.
The mediator’s role isn’t just to “facilitate” or keep the parties talking. In complex commercial disputes, the mediator provides the one thing most litigants lack: a reality check. This is the moment where an expert neutral points out the risks of not achieving a compromise, allowing parties to finally separate facts from emotion and wants from needs.
The Shield of Confidentiality
One of the greatest advantages of mediation in California is the statutory protection provided by Evidence Code 703.5 and 1152. Everything said in mediation—the offers, the admissions, the “weaknesses” shared in confidence—is generally inadmissible in subsequent litigation.
This confidentiality allows for a level of candor that is impossible in a courtroom. As a mediator, I use this shield to explore settlement options that the parties would be too afraid to mention in a formal deposition. This “safe space” is where the most creative, business-saving compromises are born.
Facilitator vs. Evaluator
A great mediator wears two hats. As a facilitator, I help the parties communicate their underlying needs. As an evaluator, I provide the objective analysis of the litigation’s risks. This dual role is what allows a mediated settlement agreement to become as binding and enforceable as any contract, but with significantly less “blood on the floor” than a trial.
Actionable Takeaway: Getting the Most from Mediation
- Demand a Reality Check: Don’t just look for a mediator who “keeps people talking.” Look for one who can evaluate the subject matter and point out the holes in both sides’ arguments.
- Leverage the Code: Use the confidentiality of Evidence Code 1152 to test out-of-the-box settlement structures without fear of them being used against you later.
- Separate Needs from Wants: Before the session, help your client identify their “must-haves” versus their “nice-to-haves.” The mediator can help you bridge the gap between the two.
Evaluative Mediation is where facts meet the bottom line. I specialize in providing the evaluative edge that helps litigating attorneys find closure for their clients. Connect with me today for your next commercial mediation.
This blog is adapted from my unpublished manuscript on Alternative Dispute Resolution (ADR).
About the Author: Ken Strongman is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA, past president of The Mediation Society. and instructor at UC Law San Francisco.
© 2026-27 Ken Strongman. All Rights Reserved. Please do not copy or re-post without permission.
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