Evaluative Mediation On Steroids

From Clare Fowler’s Fairly Legal Blog

THere are three main types of mediation styles:

1.Evaluative Mediation: A mediator focuses on the legal rights of the parties and the strengths of their cases. The mediator discusses the weakness of the parties’ BATNAs (Best Alternative To a Negotiated Agreement) and convinces the parties to settle. More often used with lawyers who are more familiar with the court process, time, and expense. Evaluative = Pushy

2.Facilitative Mediation: A mediator helps parties find their underlying interests and tests the strengths of their option. Facilitative mediators help parties reach agreement on their own. Facilitative = Hand-holding

3.Transformative Mediation : A mediator helps parties discover their own interests in the mediation, and then repair their relationship for future interactions. Transformative = Touchy-Feely

Kate is an evaluative mediator. Evaluative squared. An evaluative mediator gets her power from providing opinions and suggestions on the case. Some clients find these suggestions helpful, some find them to be unwelcome. Some mediators see evaluative mediation as offering wisdom, some see it as the antithesis of mediation.

According to Paul Fisher, “Mediation is a process in which a neutral, called a mediator, assists the parties in exploring issues in the case. The mediator facilitates discussion between counsel and parties, and guides the parties toward finding their own solutions to the dispute.” This definition holds true for facilitative and transformative mediation. But is it true for an evaluative mediator? A traditional evaluative mediator still helps the clients find their own solutions to their dispute, but skillfully asks questions and suggests options to help the clients select the best solution.

Kate Reed has developed a new type of mediation that goes beyond Evaluative Mediation; I would venture to call her style Coercive Mediation. Coercive Mediation would fall somewhere between Evaluative Mediation and a Judicial Ruling. In the episode with the sports case, Kate has already determined that the doesn’t like the coach. She calls him, “Moron.” She tells him, “You didn’t like Riley.” In other words, far from being neutral, Kate has already judged the coach. While she spouts things like, “In mediation, both sides need to be heard,” she is not practicing what she preaches. If both sides were being heard fairly, then Kate would refrain from judging. She would refrain from insulting her clients. She would respect both of her clients.

It might not be as dramatic, but I sincerely believe that clients will open up just as much when they are respected as they will when they are bullied. Evaluative/coercive mediators (like Kate in this episode) get their power from driving fear into their clients about what will happen if they don’t settle. Sometimes, yes, this might be the only tool in your toolbox that works. But shouldn’t this be the last resort? I posit that mediators should actually have a different technique. I posit that mediators get their power from instilling hope in their clients about what will happen if they do settle.

Thank you, Katina Foster, for your overview of the styles.

                       

Clare Fowler

Clare Fowler is Executive Vice-President and Managing Editor at Mediate.com, as well as a mediator and trainer. Clare received her Master's of Dispute Resolution from the Straus Institute for Dispute Resolution at the Pepperdine University School of Law and her Doctorate in Organizational Leadership, focused on reducing workplace conflicts, from Pepperdine… MORE >