Facilitative and evaluative mediation – are the labels misguided?

In our modern age of fluidity, one wonders whether the question – ‘Are you a facilitative or evaluative mediator?’ – is pertinent anymore. Must a mediator identify with one or the other? Can a mediator worth his salt not be both?

The problem with labels is that they can be misleading. The late great David Richbell classed himself as a facilitative mediator until he was described as ‘laidback’ by Chambers and Partners. With its erroneous implication of laziness rather than the ‘calm, persistent, patient’ style of mediating he aligned himself to, Richbell promptly re-classified himself as a ‘non-evaluative mediator’.

Similarly, evaluative could convey a mediator as being overtly opinionated rather than robust and authoritative.

Facilitative and evaluative mediation

Back in 1994, at the time of my accreditation, the Centre for Effective Dispute Resolution (CEDR) made a clear distinction between a facilitative and evaluative model of mediation. Its training course handbook described facilitative mediation, in its purest form, as ‘the mediator’s discreet, almost anonymous presence, enabling the parties to achieve settlement by oiling the wheels of communication’.

Evaluative mediation, on the other hand, was about proffering an opinion – on merits or on appropriate settlement terms or another aspect of the case – on the basis of which the parties could decide whether or not to settle.

The devil’s advocate

Years ago I mediated a local authority’s claim against an engineering firm. In private session with the local authority and their counsel, the devil in me forcefully advocated the defendants’ case, which I felt hadn’t been properly understood. But my evaluation of the weakness of the claim went unchallenged. The case settled for a modest sum yet I still received a ‘thank you’ letter from the local authority. Facilitative or evaluative? Certainly on this occasion I was something other than the ‘discreet, almost anonymous presence’.

Blurring the boundaries of mediation

In my mind, mediation at its best is a fluid mix of facilitation and evaluation. Facilitation is about providing the right environment, bringing the right people together at the right time and ‘oiling the wheels of communication’. Evaluation is focused on assessing strengths and weaknesses – which by necessity means not acting merely as a dispassionate bystander.

Furthermore, any good mediator is like a chameleon. They have the ability to be one thing in one room and another in another room – all within the same day’s work.

Mediation and the human touch

Of course there will always be mediators who are known for being evaluative or facilitative. But let’s not forget about the human element here. For every mediation style, there is a myriad of personalities and characteristics at play – certainly at In Place of Strife our 30+ mediators cover the gamut. Need an authoritative mediator? We’ve got one. Prefer a mediator with a lighter touch? Take your pick.

Just don’t be surprised to find that our mediators can be whatever you need them to be.