Pros and cons of evaluative mediation

ADR geeks like to vigorously debate the advantages and disadvantages of evaluative mediation and compare it to facilitative mediation. Like most scholastic arguments these debates often end up make things more obscure than clear.

Evaluative mediation is where a mediator engages with the merits and at some stage tells the parties what s/he thinks the Judge will decide. A facilitative mediation is where the mediator is much more focussed on getting the parties to debate issues, do the work and settle or not.

It is clear, therefore, that in an extreme form both styles are unproductive. A mediator who has only read a selection of the papers and spent just a few hours thinking about a case is not in a good position to give a well-informed final view. Doing so is likely to rupture the limited rapport which has been built and if the parties know a mediator is going to give a view, it may inhibit their willingness to be open and frank in confidential sessions. On the other hand a mediator who is purely facilitative might end up being little more than a shuttle. The whole point of getting the mediator into the negotiation space is to help the parties and their representatives listen and be heard, assess, test and be coached. A wilting wall-flower who simply reflects back what they hear is unlikely to get the job done.

My approach

For a mediation to work well there has to be trust and rapport between a party and the mediator. The mediator needs to recognise what they know and don’t know, what they bring and don’t bring. They do not bring an encyclopedic knowledge of the facts or every nuance of the legal argument - that is for the parties and their teams - but because I only mediate cases involving professional negligence and/or costs I do bring substantial knowledge and experience of how these claims often play out in Court. I also bring a neutral perspective on what arguments are attractive and unattractive. Finally, I acquire insight into what each room thinks about the dispute and that can help a counter-party shift their risk analysis. Ultimately the parties are there to settle if possible and my job is to help them get there. If they are miles apart then there is usually a stage where both sides benefit from a pummeling and it is better to have it in the secret confines of a mediation then in closing submissions at trial.

So am I evaluative or facilitate? Like most, I try to take the best of both: listening and understanding at the beginning and as the day goes on testing, coaching and challenging.