A Mediator's Style Can Make a Difference in the Result of Your Mediation
Mediators can differ markedly in their view of the objective, protocol and process of mediation. This article provides an overview of two mediation styles - evaluative mediation and facilitative mediation - identifies issues to be considered when advising a client on a mediation style, and suggests questions to ask prospective mediators to determine their styles.
Facilitative Mediation versus Evaluative Mediation
Facilitative mediation, also known as "pure" or "traditional" mediation, has been described as the facilitation of the parties' own negotiation, conducted by a third party who is neutral, regarding the outcome. Evaluative mediation occurs when a mediator provides an opinion of the case, renders a perspective on the party's position, suggests an outcome, or predicts how a court might resolve the case.
Professor Leonard Riskin is credited with crystallizing the facilitative versus evaluative debate through the publication of his second article on the subject, "Understanding Mediators' Orientations, Strategies and Techniques: A Grid for the Perplexed," 1 Harv. Negotiation L. Rev. 7, 24 (1996). In facilitative mediation, the mediator, often through a type of shuttle diplomacy, leads and facilitates discussion between the parties without evaluating the merits of the claims. These discussions may include joint sessions and individual meetings designed to assist the parties in reaching their own agreement.
Conversely, according to Riskin, mediators at the end of the evaluative spectrum adopt strategies "intended to direct some or all of the outcomes of the mediation." Id. Indeed, these mediators sometimes put pressure on the parties to accept their proposal or evaluation. Some mediators tend to disdain the evaluative approach because of a handful of recent cases suggesting that a mediator might risk liability to one of the parties for an evaluation that is later determined to be "wrong." The fact is, however, that many parties affirmatively seek out an evaluation in mediation, even though those parties might be better served by obtaining an early neutral evaluation rather than engaging in a mediation.
In discussing the differing assumptions underlying the choice of an evaluative or facilitative style, Riskin notes:
The mediator who evaluates assumes that the parties want and need her to provide some guidance as to the appropriate grounds for settlement. ... Conversely, the mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Id.
Issues to Consider When Choosing a Mediation Style
Of course, a mediator need not be at either end of the continuum and might espouse a hybrid approach, but it is probable that most mediators tend toward one of the two ends. Thus, in assisting a client in choosing an appropriate mediator and mediation style, the following items might be considered:
The Client's Role in the Mediation
If your client expresses a b desire to be involved in the mediation, and is capable of being effective as an active participant, then the facilitative style, in which the emphasis is on self-determination, may be preferable. If your client wishes to assume a more passive role in the mediation, then the evaluative approach, where the mediator seeks to convince each party to make concessions and where there often is an emphasis on factors favoring settlement, may be more to your client's liking.
When helping your client to assess the role he or she wishes to assume in the mediation, you may be also be mindful of your role as counsel. Specifically, some theorists argue that attorneys tend to favor the evaluative mediation style, and to influence their clients accordingly, because the evaluative approach most closely resembles litigation. Thus, if you identify this propensity in yourself, then you may want to be extra sensitive to clients with more facilitative oriented needs.
The Client's Objective in the Mediation
An evaluative oriented mediator, who is more likely to render opinions regarding a case's value and to make predictions concerning a matter's outcome, typically focuses on money issues. Accordingly, if your client's main priority in a particular matter is money, then an evaluative mediation approach may be the most appropriate. If a client is more concerned with an innovative business solution, is consumed with pain and suffering, is more interested with getting an apology from her adversary than obtaining a dollar amount, or is adamant about having an opportunity to vent, then a more facilitative mediation stance, which tends to emphasize the emotional benefits associated with autonomous decision making, may be advisable.
The Nature of the Dispute in the Mediation
Another issue to consider when choosing a mediator is the nature of the dispute. Specifically, if the bargaining in a matter will be more distributive (so that the pie may be divided) as opposed to integrative (so that the pie may be expanded), then the evaluative style may be preferable. Moreover, if you believe that the case law solidly supports your position, then an evaluative mediator will likely be more favorable to your position (of course, a mediator favorable to your position may not necessarily get the case settled - the mediator may be so concerned about giving your opposition a "reality check" that they neglect to focus on settlement).
The Nature of the Relationship Between the Parties to the Mediation
In choosing a mediation style, your client may also wish to consider the nature of her relationship with the other party to the mediation. If there is an ongoing relationship (e.g. employer-employee, companies under contract, co-parents) then your client may prefer a facilitative approach which encourages collaboration and is more likely to provide the opportunity to fashion creative solutions. However, if the parties' relationship is the culmination of a one time incident and your client is more concerned with winning and less concerned with getting along, then an evaluative mediator who can take responsibility for making that hard, yet hopefully fair, recommendation may be preferable.
Selecting a Mediator with the Client's Preferred Style
Once you and your client consider these issues and identify the most appropriate mediation style, then you can select a mediator who embraces your client's preferred style.
To help your client make the best choice, keep the facilitative versus evaluative style debate in mind when interviewing prospective mediators. In the early days of mediation, it was enough to simply know the general background of the potential mediator. Parties are now more sophisticated in conducting the interviewing process. First, ask prospective mediators to describe their mediation style generally. Then ask them specifically if they consider themselves to be facilitative or evaluative mediators. Ask them if they ever think evaluation is appropriate and if so, under what circumstances. If they practice the evaluative style (and that is your client's preference), then inquire as to what experience and/or training they have to evaluate particular issues. Of course, be certain that if you are coordinating the choice of a mediator with opposing counsel, you do not make any ex parte communications that may "poison the well."
Conclusion
In some situations, a third-party neutral with an evaluative orientation will be more effective for a particular client's matter. In other cases, a strictly facilitative mediator may be more appropriate. Whatever your client's preference in style, properly labeling the available mediation processes and clearly communicating the underlying parameters of each style helps to ensure mutual understanding for both you and your client.
Facilitative Mediation versus Evaluative Mediation
Facilitative mediation, also known as "pure" or "traditional" mediation, has been described as the facilitation of the parties' own negotiation, conducted by a third party who is neutral, regarding the outcome. Evaluative mediation occurs when a mediator provides an opinion of the case, renders a perspective on the party's position, suggests an outcome, or predicts how a court might resolve the case.
Professor Leonard Riskin is credited with crystallizing the facilitative versus evaluative debate through the publication of his second article on the subject, "Understanding Mediators' Orientations, Strategies and Techniques: A Grid for the Perplexed," 1 Harv. Negotiation L. Rev. 7, 24 (1996). In facilitative mediation, the mediator, often through a type of shuttle diplomacy, leads and facilitates discussion between the parties without evaluating the merits of the claims. These discussions may include joint sessions and individual meetings designed to assist the parties in reaching their own agreement.
Conversely, according to Riskin, mediators at the end of the evaluative spectrum adopt strategies "intended to direct some or all of the outcomes of the mediation." Id. Indeed, these mediators sometimes put pressure on the parties to accept their proposal or evaluation. Some mediators tend to disdain the evaluative approach because of a handful of recent cases suggesting that a mediator might risk liability to one of the parties for an evaluation that is later determined to be "wrong." The fact is, however, that many parties affirmatively seek out an evaluation in mediation, even though those parties might be better served by obtaining an early neutral evaluation rather than engaging in a mediation.
In discussing the differing assumptions underlying the choice of an evaluative or facilitative style, Riskin notes:
The mediator who evaluates assumes that the parties want and need her to provide some guidance as to the appropriate grounds for settlement. ... Conversely, the mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Id.
Issues to Consider When Choosing a Mediation Style
Of course, a mediator need not be at either end of the continuum and might espouse a hybrid approach, but it is probable that most mediators tend toward one of the two ends. Thus, in assisting a client in choosing an appropriate mediator and mediation style, the following items might be considered:
The Client's Role in the Mediation
If your client expresses a b desire to be involved in the mediation, and is capable of being effective as an active participant, then the facilitative style, in which the emphasis is on self-determination, may be preferable. If your client wishes to assume a more passive role in the mediation, then the evaluative approach, where the mediator seeks to convince each party to make concessions and where there often is an emphasis on factors favoring settlement, may be more to your client's liking.
When helping your client to assess the role he or she wishes to assume in the mediation, you may be also be mindful of your role as counsel. Specifically, some theorists argue that attorneys tend to favor the evaluative mediation style, and to influence their clients accordingly, because the evaluative approach most closely resembles litigation. Thus, if you identify this propensity in yourself, then you may want to be extra sensitive to clients with more facilitative oriented needs.
The Client's Objective in the Mediation
An evaluative oriented mediator, who is more likely to render opinions regarding a case's value and to make predictions concerning a matter's outcome, typically focuses on money issues. Accordingly, if your client's main priority in a particular matter is money, then an evaluative mediation approach may be the most appropriate. If a client is more concerned with an innovative business solution, is consumed with pain and suffering, is more interested with getting an apology from her adversary than obtaining a dollar amount, or is adamant about having an opportunity to vent, then a more facilitative mediation stance, which tends to emphasize the emotional benefits associated with autonomous decision making, may be advisable.
The Nature of the Dispute in the Mediation
Another issue to consider when choosing a mediator is the nature of the dispute. Specifically, if the bargaining in a matter will be more distributive (so that the pie may be divided) as opposed to integrative (so that the pie may be expanded), then the evaluative style may be preferable. Moreover, if you believe that the case law solidly supports your position, then an evaluative mediator will likely be more favorable to your position (of course, a mediator favorable to your position may not necessarily get the case settled - the mediator may be so concerned about giving your opposition a "reality check" that they neglect to focus on settlement).
The Nature of the Relationship Between the Parties to the Mediation
In choosing a mediation style, your client may also wish to consider the nature of her relationship with the other party to the mediation. If there is an ongoing relationship (e.g. employer-employee, companies under contract, co-parents) then your client may prefer a facilitative approach which encourages collaboration and is more likely to provide the opportunity to fashion creative solutions. However, if the parties' relationship is the culmination of a one time incident and your client is more concerned with winning and less concerned with getting along, then an evaluative mediator who can take responsibility for making that hard, yet hopefully fair, recommendation may be preferable.
Selecting a Mediator with the Client's Preferred Style
Once you and your client consider these issues and identify the most appropriate mediation style, then you can select a mediator who embraces your client's preferred style.
To help your client make the best choice, keep the facilitative versus evaluative style debate in mind when interviewing prospective mediators. In the early days of mediation, it was enough to simply know the general background of the potential mediator. Parties are now more sophisticated in conducting the interviewing process. First, ask prospective mediators to describe their mediation style generally. Then ask them specifically if they consider themselves to be facilitative or evaluative mediators. Ask them if they ever think evaluation is appropriate and if so, under what circumstances. If they practice the evaluative style (and that is your client's preference), then inquire as to what experience and/or training they have to evaluate particular issues. Of course, be certain that if you are coordinating the choice of a mediator with opposing counsel, you do not make any ex parte communications that may "poison the well."
Conclusion
In some situations, a third-party neutral with an evaluative orientation will be more effective for a particular client's matter. In other cases, a strictly facilitative mediator may be more appropriate. Whatever your client's preference in style, properly labeling the available mediation processes and clearly communicating the underlying parameters of each style helps to ensure mutual understanding for both you and your client.
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