EVALUATIVE VS. FACILIATIVE MEDIATION

It is not unusual that in a mediation training program someone will relate a story of having been in a failed mediation. When I ask why they thought the process failed, there are two common reasons given. The most frequent is that, “the mediator told me what to do,” closely followed by, “the mediator favored the other party.”

Both are legitimate concerns and deserve attention. When someone says, “the mediator told me what to do,” I ask if in the mediator’s introduction, or written agreement to mediate, was the style of mediation described. The answer is almost always ,“No, it wasn’t anything like that.”

Why is this important? Mediation is mediation, isn’t it? The answer is simply, no. There are different styles of mediation and each style is conducted differently. In the form labeled “evaluative” mediation, the mediator is likely to point out weaknesses in a party’s case and even predict what a judge or jury would likely do based on legal concepts. The evaluative mediator may very well make recommendations to the parties as to possible solutions.  In the form known as “facilitative” mediaiton, the mediator may ask questions, summarize positions, help develop interests behind demands, as well as helps parties better negotiate and communicate. The facilitative mediator does not make recommendations, give advice or opinions.

If a party goes into mediation expecting the mediator to act in the facilitative style, but experiences that of an evaluative mediator, then they will certainly feel they were “told what to do” and may not feel that the experience was fair.

The Standards of Conduct for Mediators adopted by the Association for Conflict Resolution, the American Bar Association and the American Arbitration Association, clearly states that mediation must be based on the principle of self-determination, which includes making free and informed choices, not only as to outcome, but also as to the process of mediation itself.

The second common complaint was “the mediator favored the other party.” This, of course, refers to impartiality. The mediator must conduct the mediation in a manner free from favoritism, bias or prejudice.

In training programs for meditators, I emphasize that it doesn’t really matter what the mediator believes they are doing, it is more important how their behavior is perceived. A very talented mediator who speaks German once conducted a session with a party who had a German accent. After the mediation was concluded and the agreement signed, the mediator asked the party in German where she was born. The party answered by speaking German as well. Later the other party to the mediation filed to have the mediation agreement voided based on mediator partiality. The mediator called me to ask what she had done wrong. It was easy to answer. What counts is the appearance of partiality. I encourage mediators to go to the extreme to ensure that they are impartial—not accepting a cup of coffee from one party, putting a box of tissues in the exact center of the table, addressing both parties in the same way (either using first names or Mr./Ms.), while trying to balance time spent with each party. Many mediators I know encourage parties to express any concerns about impartiality if they feel that has become an issue.

Disputants in a mediation are consumers and should become informed about what they are purchasing, which in this case, is a mediating professional who meets their expectations.