Evaluative or Facilitative Mediation? – the Wrong Question

Conflict management professionals have struggled for many years whether to take a “facilitative” or an “evaluative” approach in mediation. This either/or analysis is much too simplistic and grounded in false assumptions. We need a more nuanced approach, drawing on a wide variety of “styles” and tools which are tailored to meet the needs of the situation and the parties. Professor John Lande recently published a concise and helpful article advocating for such an approach.

My mediation training was based in the facilitative approach, but I found this difficult in practice because of my legal training and experience. It seemed to me that mediators described their approaches as being in either one camp or the other, implying that one had to choose between them. Mediate.com is filled with articles expounding on the benefits of one over the other including some passionate debates. [Note 1] I have observed that this can lead to confusion, binary thinking and polarization within the field. To some extent, the divide has followed a division between mediators with a legal background and mediators with other backgrounds.

Complicating this topic are concerns about the “unauthorized practice of law”. Mediators who are not practicing lawyers are fearful about using “evaluative” techniques in case they are interpreted as providing legal advice which might lead to Law Society action.

John Lande traces this dichotomy back to Professor Leonard Riskin’s 1996 article describing a grid of mediator orientations which included a facilitative-evaluative dimension. Lande says that facilitative and evaluative mediation are “bundled models”, each model including distinct behaviours that are assumed to be interchangeable. He defines the “philosophies” of each group:

Mediators who adopt a facilitative philosophy (“facilitative mediators”) try to promote party self-determination, helping make decisions without pressure caused by mediators’ expression of opinions about likely court results and without pressing parties to make concessions.

Mediators who adopt an evaluative philosophy (“evaluative mediators”) try to help parties satisfy their interest in resolving disputes by expressing their assessments of the case and making proposals to help the parties make decisions.

Lande challenges the either/or characterization of these “philosophies”:

  1. Reality is much more complex. What mediators actually think and do in the mediation process doesn’t always align with the “style” they believe they are modelling.
  2. It is a false assumption that merely asking questions (instead of providing opinions, assessments or predictions) does not influence or even undermine party decision-making. Questions can be powerful influencers.
  3. Opinions can be expressed in a variety of ways including body language, facial expressions and tone of voice. A party could easily interpret a mediator’s raised eyebrow as a signal about an offer.
  4. In some cases, particularly when parties are represented by counsel, mediator opinions can be helpful and not harmful to party decision-making.
  5. Every mediator intervention creates some degree of pressure on the parties and a party may appreciate some pressure to settle. The question is whether it harms party decision-making.
  6. ABA research found that there is no consistent effect of particular interventions. The effects likely depend on a variety of contextual factors “such as the parties’ pre-existing relationship, history of the conflict, expectations about the process and outcome and the role of constituents” etc.

My colleague John Wade pointed out the fallacy of labels:

“What each skilled helper ‘normally’ does matters more than the name. This is also because most skilled helpers cannot easily change their normal and comfortable customs and habits. Therefore clients, lawyers and referral agencies should ask a lot of questions about the common practices of each skilled helper, regardless of their label.”

All of these comments resonate with my own experience. So what to do instead?

Lande advocates for a “unified conceptual framework” which encourages mediators to tailor their interventions to the circumstances of each situation and the needs of the parties. Since the facilitative and evaluative models are really a “bundling” of a variety of tools and interventions, then perhaps the more helpful approach is for the mediator to “unbundle” and select the individual tools that best suit the situation and the mediator’s unique skillset and experience. Lande’s helpful article describes what such a conceptual framework might look like.

In my 2015 Slaw post I landed on something fairly similar:

First, “mediation” is not just one thing. It is a flexible tool that includes a variety of processes. Some practitioners have tried to catalogue the processes and to assign names (interest-based, facilitative, transformative, narrative, evaluative, rights-based, joint, shuttle, etc.). From the perspective of the people in conflict, each of these processes will look very different and the role of the mediator will vary significantly. This has advantages and disadvantages. It is useful to have a toolbox filled with a variety of tools that a skilled person can match to the situation and the needs of the parties. On the other hand, it makes “mediation” very difficult to explain. Note 2

Let’s finally let go of the facilitate/evaluative divide and think more deeply about the tools the parties need in the moment.

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Note 1: Some add “transformative mediation” to the mix.

Note 2: As Michael Erdle suggested in 2012: “The best mediators are able to shift back and forth between facilitative and evaluative styles, as the situation requires.”

http://www.slaw.ca/2021/05/04/evaluative-or-facilitative-mediation-the-wrong-question/

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