I am frequently asked by solicitors for my views on whether a mediator should facilitate or evaluate, or both. What is interesting is that the parties rarely become involved in a debate, before the mediation, about what sort of mediation they would like to have, or how they would like the mediator to act. It seems to be largely left to the mediator to work it out.
There is scope in mediation for different styles, including facilitative and evaluative mediation. Each has its own usefulness. Many mediators use a combination of styles, depending on the dispute and the parties, and have their own personal preferences. Some mediators may discuss with the parties the style which they think might be most effective in their case; some will say the style which they prefer to use. Such a discussion may enable clients to be more satisfied consumers, and users will certainly be clearer about what mediation offers as a service. At the moment, many clients and lawyers are confused about what they will get if they go to mediation, perhaps because of a tendency to use aspects of both facilitation and evaluation in the same mediation.
In its purest form, a facilitative mediator does not make recommendations to the parties, or give his own opinion as to the outcome of the case, or predict what a Court might do. The mediator is in charge of the process, while the parties are in charge of the outcome. The facilitative mediator holds joint sessions with the parties, so that they can hear each other’s points of view, but also holds regular private sessions. He or she wants the parties to have the major influence on decisions, not the lawyers. The mediator asks questions, reality tests, searches for interests and analyses options for resolution.
An evaluative mediator is concerned with the legal rights of the parties, rather than their needs or interests. He or she assists the parties in reaching agreement by pointing out the weaknesses in their case. They help the parties and their lawyers evaluate their legal position and do a cost/benefit analysis of pursuing litigation, rather than setting in mediation. Such a mediator structures the process and directly influences the outcome and there is an assumption that he or has substantive experience or legal expertise in the type of dispute. Such a process is very close to early neutral evaluation, and it may be that that is what the parties actually want. They might not be expecting a more facilitative process.
In reality, most mediations combine an element of both methods, and are probably all the better for doing so. However, it is also clear that most mediators have a preference for a greater emphasis on one or other style. In a world where mediation is becoming a bigger part of the litigation process and becomes more regulated in terms of training, qualification, standards, cost and outcomes, this issue is likely to acquire a greater focus. Indeed, the parties should probably know what they are going to get in a particular mediation, and should perhaps choose their mediator with this in mind.