Evaluative and Directive Mediation: All Mediators Give Advice–Part 2 of 2

Here are some of the pros and cons of the various schools of “evaluative mediation”.

Advantages of Evaluative Mediation

Evaluative mediation (and hybrids thereof):

1. Provide a short form of mini-trial unencumbered by the many procedural rules attached to a full court process. Thereby there is often helpful clarification of alleged facts, evidence, rules and monetary ranges, which have previously been blurred by noise and tactics.
2. Provide a fresh insight into how an outsider, in a role play as a judge, may view certain aspects of the dispute. Yet mediation also enables a disputant to “back-out” if (s)he does not agree with the mediator’s opinion.
3. Provide a helpful second opinion when one or more of the disputants are not listening to their “first” expert.
4. Appear to provide  relatively fast and cheap production-line settlement of thousands of negotiations between personal injury claimants and insurers.
5. Give justification for middle managers to settle disputes with the seal of approval of an expert. (“The mediator confirmed that the outcome is in the normal range”).
6. Provide a comfortable environment for lawyers who are experienced with handling discussions about alleged facts, evidence, rules,  monetary ranges, advice-giving officials, and shuttle negotiations.
7. Are the only models of mediation experienced by many lawyers and give the lawyers “control” of both content and process. Therefore any other models are usually resisted.

Disadvantages of Evaluative Mediation include:

1. Some disputes, especially those involving ongoing relationships, are unhelpfully referred by habit to evaluative mediation (“misdiagnosis”).
2. Many lawyers have not been exposed to different models of mediation, and are not motivated to have such experiences with unknown risks to clients (chicken and egg). They do not have a stable of mediation “types”.
3. Once at an evaluative mediation, the mediator by habit may do minimal preparation, and allow the negotiation to continue on the lines of alleged facts, evidence, rules and monetary ranges. This habit fails to systematically analyse other causes, risks and goals, appropriate interventions, and other than monetary solutions.
4. The tendency to favour shuttle negotiations and lawyer control. Thereby key information exchange and brainstorming between the disputants in joint meetings does not take place.
5. These first four disadvantages have led many (important?) clients to label their experience of mediation as “ isolating”, “lawyer dominated”, “unhelpful”, “a waste of time”, “too focussed on money”, and worst of all for any service industry—“not –to-be-repeated”. As lawyers “lost” the businesses of tax advice and litigation, will they also gradually “lose” the mediation sector of the market to more diverse and client-oriented providers?
6. Importantly, evaluative mediators move between the negotiating groups or tribes carrying messages, offers and persuasion to “move”. Therefore, by strategy and habit, each group lies to the mediator about alleged facts, evidence, rules and monetary ranges on each “line” of the negotiation. Then the mediator routinely carries lies and deception. (S)he is deceived by the sender; and distrusted by the receiver. Accordingly, the mediator usually rewords or softens each message in ways unknown to the sender—“This is their first offer”; “ Their current view is—“. Thereby the usefulness of the mediator as a trusted adviser decreases; and each party carefully hides any life or business goals from the mediator, fearing that (s)he will “leak” in his/her role as persuader in the other room.

Standardly lawyers ask the mediator to “leave the room”, so that they can have the allegedly “real” and confidential conversations with their clients about their actual goals and risks, before resuming the deceptive role play when the mediator returns!

7. Evaluative mediators who rely predominantly on their substantive expertise become unemployable outside that narrow specialised area. This is not a problem where there is a steady flow of work in that area.

Anecdotally, the most employed evaluative mediators also appear to be highly competent in “process” and “people” skills. If this last sentence is more than anecdotally correct, there is yet another overlap between the “types” of mediation, and the behaviour of all regularly hired skilled helpers.

Conclusion and Prediction

As mediation continues to be used in interesting and different ways in many areas of conflict, remarkable diversity in practice is inevitable. The labels for mediation will probably expand beyond twenty—still well short of the over 400! “types” of therapeutic counselling. Evaluative mediation and an array of derivative hybrids will continue to be popular both with some users and funding bodies.

This pattern will lead to some minor turf struggles, and unhelpful attempts to create mini-monopolies by certain mediators and trainers.

The writer is confident that with the passage of time, repeat users of mediation services will slowly expand their repertoire of “types” of mediation and personalities of mediators, and use more sophisticated diagnosis and preparation to match the “right” disputes with the appropriate mediation service and personality.

Read Part 1 of this article here.

                       

John Wade

John Wade is an Emeritus Professor of Law at Bond University and was a practicing lawyer in Australia until 2012. John is a nationally and internationally acclaimed expert in dispute resolution, legal education and family law. For the last 40 years he has taught at two Australian, three Canadian, one… MORE >