Facilitative v. Evaluative Mediation = It’s Both: A New Study of Mediation in the U.K.

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Mountain Scene v. Lake Scene = It’s Both

By Donald L. Swanson

–Mediators “showed a marked preference toward” a facilitative style of mediation, but

–Mediators “believe that parties and their advisers expect them” to use an evaluative style of mediation.

These findings are recently published (on May 11, 2016) by the Centre for Effective Dispute Resolution (located on Fleet Street in London, England) in its “Seventh Mediation Audit: A survey of commercial mediator attitudes and experience.”

Another finding on facilitative v. evaluative mediation styles reported in the study is this:

“mediators trained in a facilitative doctrine tend to favour that approach and start out using it, but many (although clearly not all) veer towards more evaluative strategies when the going gets tough.”

Such finding is presented with a series of charts showing that mediators use both styles within a single mediation session.  The charts show, generally, that mediators:

–favor the facilitative style in the initial phase of a mediation session (when “uncovering information”)

–but move toward an evaluative style in the second phase (when “trying to get negotiations moving”)

–and move further toward an evaluative style in the third phase (when “everything is stuck”)

–and move back toward facilitative in the final phase of the mediation session (when “closing the deal”).

Interesting information.  It’s not either/or.  It’s both.

A Theory on Application to the U.S. Experience

Here is my theory on how this U.K. information applies to the U.S. mediation experience, including bankruptcy mediation.

First of all, every party to a mediation wants the mediator to be fully- and aggressively-evaluative: but only when dealing with the opposing side.  Every party wants the mediator to go into the opposing party’s caucus room and explain how the mediator believes they are going to lose at trial and how they should be making major concessions.  In fact, many attorneys hope and believe this is exactly what’s going to happen.

–But no one wants a mediator to come into our caucus room and explain to us how the mediator believes we are going to lose at trial and how we should be making major concessions.

–“No, no, no . . . don’t you dare be doing that to us!”

On the other hand, parties and their attorneys fully expect the mediator to explain hard-truths to them about their own positions.  But even in an explain-hard-truths context, the mediator must maintain a position of neutrality:

–The mediator must explain with clarity and precision and skill the opposing party’s positions, making sure everyone has a clear understanding of those positions and their implications.  This is a function and role and duty of a mediator.

–However, it’s quite another matter for the mediator to move into a non-neutral position, like: “You are going to lose this argument!” or “Your position has no legal merit!”  Any explanation of hard truths in such a manner to a mediating party will bring resentment and a perception that the mediator is acting in an improper and unfair manner.

Moreover, there are times when an attorney for a mediating party actually wants the mediator to explain hard-truths to his/her client – and to do so forcefully and thoroughly and well.

–That’s because clients, sometimes, ignore their attorney’s realistic views and concerns: the attorney can’t get the client to abandon unrealistic views and wants the mediator’s assistance in managing the client.

–But even in this situation, the attorney wants and expects the mediator to maintain a position of neutrality, while still conveying hard truths.

So . . . what do you all think about this theory?

3 thoughts on “Facilitative v. Evaluative Mediation = It’s Both: A New Study of Mediation in the U.K.

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  1. Donald, there is a lot of discussion on this almost weekly. Interesting to see the study results and to read your view on “why and what” occurs to mediators and meditations. Thanks for sharing.

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  2. The study shows that English mediators:
    1 Are failing to explain their role to the lawyers representing the parties, resulting in the lawyers not understanding the mediator’s role; and
    2 Are getting lazy at the pointy-end of mediations and – rather than digging deep and doing their job as mediators – are taking the easy way out by offering opinions on the outcome of disputed factual and legal issues, at the inevitable cost of sacrificing their perceived neutrality.

    Let me expand.

    1 If English mediators are reporting that they “believe that parties and their advisers expect them” to use an evaluative style of mediation, they have no-one to blame but themselves. They should (as I do) tell the parties’ solicitors at the preliminary conference, and in their letter confirming the agreements reached there, that their style is facilitative and that – no matter how many times they’re asked – they will NOT offer opinions on disputed factual and legal issues and, further – if the parties insist on a “mediator” who will offer opinions – they should go elsewhere.

    2 It’s all too easy at the pointy-end of a mediation to resort to offering opinions on disputed factual and legal issues. Inexperienced and lazy mediators and retired judges do this because it seems an easy way to avoid a looming impasse. The reality is that anyone can run a mediation for the first five hours. It’s when the going gets tough, because the defendant is saying that its last offer is its “top dollar” and the plaintiff is saying that its last offer is its “bottom line” and the impasse is looming, that real mediators show their worth.

    And they don’t offer opinions. Instead, they dig deep and use all the techniques of skilled mediators, including:
    * Reminding the parties in private sessions of their respective BATNAs (defined using legal advice from the respective lawyers, not from the mediator);
    * Preparing a “best case/worst case” analysis for each party to demonstrate the gulf between the best and worst outcomes of taking the dispute to Court/arbitration, which illustrates the risks involved in not settling, and reminding them that they came to mediation to mitigate those risks;
    * Looking for lateral solutions;and
    * Using the entire toolkit of techniques for bridging the last gap.

    Let’s be clear about one thing: The moment a mediator offers a party an opinion on a dispute issue of fact or law, they will lose their neutrality in that party’s eyes. And this is true whether or not the opinion favours the party to whom it is given. It’s a high-risk strategy because, unless the mediator’s opinion is accepted and the dispute settled on the basis of the opinion, their neutrality is shot with respect to that party and they might as well go home.

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