Academics will argue that I’m simplifying and leaving out a lot of specifics, details, and exceptions… To which I respond by saying, “There will be no test on the contents of this post.” Mediators have three approaches to mediating: (1) Facilitative; (2) Evaluative; and (3) a combination of both. Facilitative mediations are where the mediator assists with communication between the parties. That is, relaying information, offers, and counter offers in non-confrontational ways so as to ease tension and keep tempers and other emotions from reaching levels that thwart settlement. Evaluative mediations are where the mediator provides opinions to each side about the strengths and weaknesses of their positions from a neutral and unbiased third party. As you can easily guess, many mediators employ both facilitation and evaluation in the same mediation.
Having been a party representative (meaning I represented the plaintiff or defendant) in more mediations that I can recall, I have seen the three approaches used effectively and ineffectively. Facilitation alone may be ineffective when one side has taken a position that is in opposition to clear cut law and obvious facts. Evaluation alone may be ineffective, because the mediator has not had the time and done the work to know the case as well as the attorneys for the parties. When a mediator provides an opinion, it is just that… an opinion… an opinion based on his or her experience and knowledge… experience and knowledge that may be less than the attorneys for the parties. When a mediator provides an evaluation that is in opposition to clear cut law and obvious facts, he or she loses credibility with the parties and their counsel. A mediator without credibility is a hinderance to settlement.
By now, you have guessed where I am going with this post. The best mediators use both approaches, and the ratio depends on the specific mediation. My mediation specialty is medical malpractice and personal injury… Actually anything with medical issues. However, as one of the two founders of a law firm that has also practiced real estate law for two decades, I consider mediations of real estate cases my specialty too. When I mediate cases within my specialties, not only do I use an approach which provides a lot of evaluation, I am expected to do so by counsel for the parties. I am often selected because of my background, education, experience, and expertise in medicine. When I mediate cases in other areas of law, I am more facilitative. However, having litigated for the last two decades, I am able to provide valuable opinions and insight into any area of litigation, and so I do.