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Lawyers should also consider the “style” of the mediation that the proposed mediator will conduct. The two more common styles of mediation are facilitative and evaluative, or a combination of both.
A facilitative mediator is a neutral person who assists the parties in taking ownership of the issues and solving the dispute amongst themselves. The role of the facilitative mediator is to manage the process and guide the parties to a mutually agreeable resolution by facilitating discussion, asking open questions, communicating settlement offers, and digging into the real issues below the surface. Both parties are involved in the mediation’s outcome, unlike a judicial outcome where the decision is ultimately in the hands of a third-party decision maker. In mediation, the clients/parties tend to have the influence on decisions made, rather than the parties’ lawyers.
One of the benefits of a facilitative mediation is that it empowers parties to take responsibility for the outcome of the dispute. Occasionally however, such an approach may not work and more so, where there is a clear power imbalance between the parties. Facilitative mediations may be more time consuming as there is often considerable time spent on non-legal issues.
An evaluative mediator will give an evaluation of the strengths of the parties’ cases. Generally, this type of mediation will be concerned more with the legal rights of the parties, rather than their underlying interests. The mediator will evaluate the parties’ legal rights and positions, may push parties towards settlement, develop and/or propose the basis for settlement, predict an outcome in court and educate each party on their strengths and weaknesses. For an evaluative mediation to work, the mediator should have substantive expertise in the subject matter. Careful management of the parties such that there is no appearance of a winner and a loser is important to the process, especially where the mediator concludes that one party has the stronger case. This approach demands clients be prepared for possible negative feedback on their legal position.
In many situations there is room for both approaches. For example, parties could have the mediator start out as facilitative and progress towards evaluative, or when the parties request, provide an opinion on, or evaluate, the legal rights of the parties and the process.
