Evaluative Mediation
There are three main types of mediation in common use today: facilitative, evaluative and transformative. The most common type of mediation practiced in facilitative. Facilitative mediators organize a process to help the parties reach a mutually agreeable solution to their problem. Transformative mediation is very similar in process and methods to facilitative mediation however, transformative mediators seek to go beyond facilitating by helping the parties empower themselves and transform their relationship. Evaluative mediation differs a bit from both transformative and facilitative mediation as evaluative mediators seek to help the parties in mediation by attacking the weaknesses in the respective parties’ cases. Evaluative mediation is defined as “fundamentally, that the mediator gives at least one of the parties an opinion. That opinion could be on the merits of a legal claim or defense, possible settlement, the likely outcome or value of a case were it adjudicated, or some other area where the mediator makes a conscious step from facilitation to evaluation” (Casey, Wood 2007).
Process
Evaluative mediation is generally practiced by attorneys or people who have an expertise in a particular field. Evaluative mediators are generally assigned by the court. Evaluative mediators are less concerned with needs and interests and are more concerned that the respective parties’ legal rights are protected. It is for this reason that evaluative mediators generally have a lot of experience in law and/or are attorneys. Attorney representing the parties usually work with the court in selecting an appropriate mediator (Zumeta2000).
Unlike in facilitative mediation where the mediator usually meets with the parties in a joint session and later uses caucuses to talk to the parties individually, evaluative mediators most often meet with each party separately and engage in “shuttle diplomacy”. Evaluative mediators may help the parties examine whether or not it is financially more appropriate to settle in mediation or pursue a trial. As mentioned earlier mediators help parties ascertain whether or not their legal right are preserved in mediation versus going to trial. The evaluative mediator spends a lot of time going back and forth to the opposing parties to try and help them reach a solution.
There are two main styles of evaluative mediation: narrow and broad. Evaluative mediators using a narrow style will focus primarily on the legal positions the parties have taken. Narrow style mediators will point out the strengths and weaknesses of the positions and the likely outcomes if the matter were to go to court. So there is some risk analysis-cost benefit analysis that the mediator engages the parties with in order to help them reach a decision.
Broad style evaluative mediators engage in the same analysis as narrow style mediators, however broad style evaluative mediators will seek to understand the underlying issues and interests the parties have in addition to using the risk analysis. Broad style mediators seek a solution that not only protects the legal right of the parties but also tries to address the underlying issues involved (Casey, Wood 2007).
Techniques and Strategies
Evaluative mediators use a variety of techniques and strategies to achieve a negotiated settlement. The most common technique employed is to use risk analysis. Parties are often convinced to reach settlement based on the perception they have of what the outcome would be if they took the matter to court. So the evaluative mediator points out the weaknesses in the parties’ respective position and the strengths in the other parties’ case. So an evaluator would ask questions like “How are you going to prove the other side did X?” Or “How do you address the other side’s contention that Y is the reason for your action?” Evaluators might point out admissibility problems with a statement like “It is doubtful the judge will allow that to go to the jury based on the evidence that you have.” Or the evaluator might point to similar decisions courts have returned in the past and make a comparison to the parties’ case, “Similar jury verdicts over the last ten years have awarded X, Y and Z. So a favorable decision in your case would be more in line with X, Y, Z.” Evaluative mediators might also propose settlement terms to one party by simply asking if they would agree to certain terms, “Would you settle this case today if I can get them to rebuild your deck and have it done in 1 week?” Finally the mediator might suggest terms to both parties like, “Look given how expensive it is to continue litigation, not to mention the fact that you might lose, this case should be settled today, right now for X” (Casey, Wood 2007).
Pros and Cons
Any approach to mediation has pros and cons associated with it. Evaluative mediation is no different. Following is a list of the commonly recognized pros and cons associated with evaluative mediation:
Pros
1. Evaluative mediation provides an answer seen as fair when parties are unable to reach an agreement.
2. Evaluative mediation process is much quicker than litigation.
3. Attorneys are very familiar with the process (Zumeta 2000).
Cons
1. Evaluator may be incorrect in his assessment of the case.
2. Attorneys being so familiar with the process may choose evaluative mediation over another approach to Alternative Dispute Resolution.
3. The parties may not choose evaluative mediation if they had more information about other approaches to Alternative Dispute Resolution (Zumeta 2000).
The biggest risk associated with evaluative mediation would seem to be that the evaluative mediator in incorrect in his assessment of the case. A mediator not well versed in the subject matter or the legal process could do more harm than good in mediating a case. It follows that this must be the reason that evaluative mediators are most often attorneys. The risk of an evaluative mediator not understanding a particular case seems small when most of the time the mediator works with the respective parties and their lawyers to help settle the case. Additionally, the fact that both parties work with the judge in selecting an appropriate mediator for the case would seem to mitigate the possibility that the mediator would not understand the particular dynamics of a case.
One of the pros of evaluative mediation might be viewed as a con to facilitative and transformative mediators. An evaluative settlement is seen as fair when both sides cannot reach an agreement. An example is the two sisters fighting over the orange. An evaluative mediator gets each sister half of an orange. The facilitator finds out that one sister needs the pulp for the orange juice and that the other sister needs to rind for her frosting. The facilitator understanding the competing interests can identify these interests in caucus and then have the sisters relay those interests so that the ultimate settlement sees one sister receiving all the pulp and the other sister receiving all the rind.
Conclusion
Evaluative mediation serves a purpose when the parties are primarily concerned with legal issues or just money. Evaluative mediation also seems to serve when one or both of the parties are unwilling to make a decision and would rather rely on the mediator to propose a settlement, as long as it is fair. There is a great deal of debate about which method of Alternative Dispute Resolution is the best. This paper purposefully avoided in engaging in that debate as it seems, to this author at least, that the best form of ADR is the one that works in a particular case. The billions of problems created in the world each day afford plenty of opportunity for all methods of ADR to be employed and even those yet to be discovered.
References
Casey, K.R. and Wood, J.M. (2007). Part I - Evaluative Mediation: Focusing on the Merits of Legal Positions. Retrieved from http://www.stradley.com/library/files/adradvisorspring_07.pdf
Jarret, B. (2013). Moving Beyond Brands: Integrating Approaches to Mediation. Retrieved from http://justice.uaa.alaska.edu/forum/29/3-4fall2012winter2013/a_mediation.html
Kichaven, J. (2008). Evaluative Mediation Techniques Help Achieve Success. Retrieved from http://www.irmi.com/expert/articles/2008/kichaven06-liability-claims-mediation.aspx
Pollack, C. (2012). Evaluative Mediation and Some of the Considerations in Deciding Whether to Agree To It. Retrieved from http://www.jamsinternational.com/adr/evaluative-mediation-and-some-of-the-considerations-in-deciding-whether-to-agree-to-it
Zumeta, Z. (2000). Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation. Retrieved from http://www.mediate.com/articles/zumeta.cfm
Jarret, B. (2012) University of Alaska Anchorage. Retrieved from http://justice.uaa.alaska.edu/forum/29/3-4fall2012winter2013/a_mediation.html
Evaluative Mediation
A Paper Presented To
Professor Michael S. Eagleson, JD
In partial fulfillment of the requirements of
MGMT 457, Principles of Management
University of La Verne
College of Business and Public Management
Glen Sallee
La Verne, California
03/12/2013