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Mediation is a negotiation to achieve case settlement, and while there are different styles and approaches, there is no specific right or wrong style, leaving room for individual mediator preferences, approaches and methods. In all styles or forms of mediation there are some common factors:

  • The mediator is a neutral, and does not act as an advocate for either side.
  • There is a protocol or procedure for identifying and addressing issues in dispute.
  • The process is confidential and without prejudice.
  • The parties retain the decision-making authority as to settlement or outcome.

It would also be incorrect to characterize mediation in distinct categories of evaluative or facilitative. During the course of a mediation, a mediator might make use of more than one style.

Facilitative Mediation

Facilitative mediation is based on the belief that, with neutral assistance, people can work through and resolve their own conflicts. In a facilitative mediation, the mediator will take an active role in controlling the "process." Process means things like setting the ground rules for how the problem will be solved. The mediator asks questions to identify the interests of the parties and the real issues in the disagreement and facilitates the dialogue between the parties to a mutual understanding. The mediator helps the parties explore solutions that benefit both parties. The mediator does not offer an expert opinion on the strengths and weaknesses of the parties' cases. The mediator may offer solutions as possible options without direction or preference.

Evaluative Mediation

Evaluative mediation is based on the belief that mediators with expertise in the issues in conflict can help the parties to assess the strengths and weaknesses of their legal or other positions and that their opinion will be used to work to achieve settlements. Individual meetings between the mediator and one party at a time (called "caucuses") can be a major component of evaluative mediation. The focus of an evaluative mediation is primarily upon monetary settlement. The mediators will make their best efforts to get the parties to compromise, if necessary, to achieve a result. The mediator may suggest a recommended settlement for the parties to consider.

Do you want a Facilitative or Evaluative Mediator?

Evaluative mediation is specifically valuable when

  1. there are significant questions of fact or fact in law that may alter the outcome of the case,
  2. where the matter of issue is rights based, and settlement ranges are well established through precedents and
  3. where a third party neutral' s expert opinion will have a significant influence on a party's decisions.

Examples would be where legal rights already define possible outcomes, or a party's perspective on the merit of the case or value of the case is not the same as their own counsel, or is broadly open to interpretation. It is a good process if there is no ongoing relationship between the parties. Evaluative mediation provides both reality testing and settlement recommendations.

Facilitative mediation is less directive, but can lead to more creative and satisfying outcomes because it frequently requires the parties to engage themselves more in generating solutions and exploring the issues. Facilitative mediation manages both the relationship and the outcome expectations. It is a good process where there is any ongoing relationship between the parties or concern about professional good will or reputation.

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