–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?