Training in Evaluative Mediation?

Should mediation training include evaluative as well as facilitative mediation? A recent law review article complains that mediators are trained only in the facilitative style of mediation, yet the market demands an evaluative style, leaving mediators ill-equipped for real-world mediation. The article, Practical Considerations in Mediation Training: Should Mediators be Trained to Adapt to the Circumstances of Each Case?, 11 Appalachian J.L. 185 (2012) by Professor Kenneth F. Dunham, of Faulkner University’s Thomas Goode Jones School of Law, draws on research to show that business parties and their attorneys prefer evaluative mediators, leaving facilitative-trained mediators to “find their own way to the directional/evaluative approach preferred by” most mediation consumers.

As a mediation trainer who has trained mediators only in the facilitative style for twenty years, I’ve heard this complaint before. Based on my own experience as a mediator, buttressed by national leaders in the field such as Josh Stulberg, Lela Love and Kimberlee Kovach, I prefer facilitative over evaluative, for a variety of reasons. The terms were coined by Prof. Leonard Riskin in a landmark article, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harvard Negotiation Law Review 7 (1996) to explain the mediator’s level of involvement in a particular outcome to the mediation. In a subsequent article, Prof. Riskin reframed “facilitative” as “elicitive,” to clarify that this mediator style elicits solution options from the parties; and he re-cast “evaluative” as “directive” to clarify how this mediator style directs the parties to an outcome that the mediator believes to be fair and acceptable. Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 Notre Dame L. Rev. 101 (2003). Prof. Riskin contends that a good mediator ought to be adept along the full spectrum from facilitative/elicitive to evaluative/directive, and I agree.

We train in the facilitative style because it’s harder to learn. Throughout the training, people are fighting their natural inclination to “just tell the parties what to do.” A professional who is selected by parties who know and respect her, to mediate a case where she has subject-matter expertise, will instinctively conduct an evaluative mediation, and do just fine, without any training. Prof. Dunham’s survey indicates that mediators would still like some training in how to conduct evaluative mediation. I don’t think there’s much out there, and there should be.

But is the problem with the training, or with the market? As Prof. Dunham notes, attorneys gravitate towards the evaluative approach because it’s more like judicial settlement conferences and thus more familiar. If the market is thus demanding evaluative mediators, one solution is to change our training offerings, but the other solution is to educate clients to possibilities outside of their comfort zone. Mediators who use facilitative skills—asking questions, involving the clients, searching for creative, non-monetary options, exploring underlying interests and relationships—can help educate mediation consumers about the benefits of a more facilitative approach to mediation. My facilitative-mediator colleagues and I could tell story after story of cases where a narrow-evaluative approach would have resulted in impasse, or an unsatisfactory monetary payment, but the facilitative-broad approach resulted in creative outcomes that pleased everyone. Facilitative-trained mediators expand options for mediation users even when users think they want an evaluative approach.

So, yes, offer some training in how to mediate in the evaluative style, but not at the expense of facilitative mediation training.

2 Comments

  1. Posted December 29, 2012 at 7:58 pm | Permalink

    I agree that we need to continue to train mediators in facilitative mediation techniques, but I submit that failure to acquaint prospective mediators with some directive mediator techniques may lead to frustration of the mediation process. I do not advocate using purely evaluative techniques in my article or in my mediation trainings. I still prefer being facilitative as long as possible during a mediation. I have encountered retired judges who hold themselves out as mediators, but who act more like arbitrators. To me, that is not mediation. The problem I have personally encountered with being purely facilitative in some mediations is refusal by the parties to accept the benefits of facilitation. I have found through experience that I have been able to help these parties achieve a settlement through some well-placed directive comments and reality checking in caucus. I still believe in self-determination of the parties, but the fact remains that some parties have little idea of what they really need until they become aware of their interests. I have been mediating cases since the 1980s, and I have seen our field of endeavor grow by proverbial leaps and bounds. Attorneys representing parties now play a larger role in this process than ever, and many of them have little patience with the facilitative process. They want to get to the point quickly. There are plenty of retired judges out there who are willing to accommodate them. I started out my mediation career as a purely facilitative mediator, and I trained mediators for years in purely facilitative techniques. Due to my own mediation experiences and the increasing demand for mediators who are more directive, I now include directive techniques in addition to facilitative techniques in my training sessions. I do not advocate we give up on facilitative mediation due to market conditions, but like a boy scout I think we need to be prepared for our likely encounters.

  2. Posted October 17, 2015 at 10:53 pm | Permalink

    we had already lost the batlte of nomenclature. Mediation is mediation is mediation by any other name. Public and media perception is that mediation involves shuttle negotiation, someone pressuring participants and putting out their own valuations, telling parties what to do all the hallmarks of legal mediation, which is what many lawyers want and are used to. There is nothing wrong with this if it is informed choice.Let’s look at it from a different angle, however. Since lawyers choose mediators in litigated cases and since this style of mediation is fairly typical of that used in many litigated cases, are lawyers going to stop choosing this if they 1) really want a quick settlement, 2) believe that the other kind of mediation is touch-feely, and 3) their clients have no clue?I teach mediation in 2 law schools and many of my current and former students attend mediation with the type of mediator described in the Boston Globe article. My email often contains stories of such mediation styles that are no longer satisfying mediation savvy attorneys. And, I get many requests for information about mediators for various cases from former students and friends who want to stay away from just such situations.The public, in this case, is really lawyers. They choose the mediators who provide mediation in this type of litigated case. We need to educate those who select the mediators and we need to do it at the earliest possible time law school.

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