Evaluative Mediation: A Frequent Choice in Civil Litigation

Today, we continue in my series to describe many options that fall under the term “Alternative Dispute Resolution.” In my last post, we reviewed a broad form of ADR —Mediation. However, mediation can take several forms and in this series we’ll review four of them: evaluative, facilitative, transformative and narrative. Since many lawyer-mediators mediate exclusively in the form of evaluative mediation, we’ll start there!

Definition and Components:

Many of the attorney-mediators in civil legal cases trained in an evaluative style of mediation.  Bush and Folger in The Promise of Mediation sum it up as mediation that requires mediators to “steer them towards outcomes in substantive conformity with legal rights.” Kate Shonk, in Choose the Right Mediation for You observes, “Mediators are more likely to make recommendations and suggestions and to express opinions. Instead of focusing primarily on the underlying interests of the parties involved, evaluative mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations. “

Evaluative mediation often relies on a “fixed pie” model of negotiation that assumes resources are finite and when one party gains anything the other loses something.

Evaluative mediation often relies on a “fixed pie” model of negotiation that assumes resources are finite and when one party gains anything the other loses something.

Shonk observes that evaluative mediation requires the mediator to evaluate the case and share that information, attempting to respect the parties’ right of self-determination. Evaluative mediation focuses on settlement of the claim, and decisions are often based on legal analysis and often involve compromise or a fixed pie form of negotiation. Evaluative mediators often work in caucus.

Unique qualities:

A neutral third party guides the negotiation process and often carries offers back and forth, while providing an opinion on issues, including the value and likely court resolution to the case.  

Steps or stages:

The mediator begins with an introductory statement.  The parties or their counsel may give opening remarks. Then, the discussion of mediated issues begins.

Advantages:

  • Allows for parties to enjoy the benefits of mediation; may include interest-based negotiation.

  • Gives participants access to an expert valuation of the case.

  • More effective when the parties do not have any interest in an ongoing relationship.  

  • Can move the case closer to resolution when the parties have profoundly different perceptions of fact or law.

  • Works well when with a distributive issue or financial questions.

  • Can often be faster than other forms of mediation.

 Disadvantages:

  • Positional bargaining often escalates conflict or produces impasse.

  • Settlements may not make the parties feel heard, may not satisfy needs and interests.

  • When the mediator works as an evaluator, the parties may be coerced or feel coerced. May not conform with the traditional concept of mediation.

  • May maintain an adversarial climate.

  • Takes away parties opportunity to create their solutions.

  • May give up information in the mediation that you prefer to withhold, particularly if the other party is not participating in good faith.

 Best for:

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            Conflicts between individuals do not have a continuing relationship and involve only financial issues. While our office does not routinely recommend evaluative mediation for most situations, we are happy to discuss this option with anyone who may be interested. Contact us for more information. If you are considering mediation in a family law matter, we offer a free monthly workshop at each of our locations where you may attend and ask any questions pertaining to mediation or family that you may have. Remember, you have many options! If you are interested in reading more about the debate between facilitative and evaluative mediation, this article by Ellen Waldman may be interesting.