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.