Evaluative Mediation

Definition

Evaluative mediation is a type of alternative dispute resolution process where the mediator takes a more active role in assessing the merits of the case and providing guidance to the parties on the strengths and weaknesses of their positions. The mediator aims to facilitate a resolution by helping the parties understand the likely outcomes if the dispute were to proceed to trial or arbitration.

5 Must Know Facts For Your Next Test

1. Evaluative mediation is often used in legal disputes where the parties seek the mediator's assessment of the case's merits and likely outcomes.
2. The mediator in an evaluative mediation process may provide the parties with their professional opinion on the strengths and weaknesses of each party's position, as well as a prediction of the potential court or arbitration outcome.
3. Evaluative mediation is particularly useful when the parties have unrealistic expectations about the potential outcome of the dispute, as the mediator's assessment can help them adjust their positions and reach a mutually acceptable settlement.
4. The mediator's evaluations in an evaluative mediation process are typically based on their expertise in the subject matter, knowledge of relevant laws and precedents, and experience in similar cases.
5. Evaluative mediation is often contrasted with facilitative mediation, where the mediator takes a more passive role and focuses on helping the parties communicate and negotiate a resolution themselves.

Review Questions

• Explain the key differences between evaluative mediation and facilitative mediation.
  • The primary difference between evaluative mediation and facilitative mediation lies in the role of the mediator. In evaluative mediation, the mediator takes a more active and directive approach, providing the parties with their professional assessment of the case's merits and likely outcomes. The mediator aims to guide the parties towards a resolution by highlighting the strengths and weaknesses of their positions. In contrast, facilitative mediation focuses on empowering the parties to make their own decisions, with the mediator playing a more passive, neutral role in facilitating the negotiation process without offering evaluations or recommendations.
• Describe the key benefits of using an evaluative mediation approach in a legal dispute.
  • Evaluative mediation can be particularly beneficial in legal disputes where the parties have unrealistic expectations about the potential outcome of the case. By providing the parties with the mediator's professional assessment of the case's merits and likely court or arbitration outcomes, evaluative mediation can help the parties adjust their positions and reach a mutually acceptable settlement. This can save the parties time, money, and the uncertainty of going to trial or arbitration. Additionally, the mediator's expertise and experience can help the parties better understand the strengths and weaknesses of their respective positions, facilitating more informed decision-making and a more constructive negotiation process.
• Analyze the potential drawbacks of an evaluative mediation approach and explain how a mediator can mitigate these concerns.
  • One potential drawback of evaluative mediation is that it may undermine the parties' sense of autonomy and self-determination, as the mediator's assessments and recommendations can be perceived as overly directive or even coercive. To mitigate this concern, a skilled mediator can maintain a balance between providing their professional evaluation and empowering the parties to make their own informed decisions. This can be achieved by clearly communicating the mediator's role, encouraging the parties to actively participate in the process, and respecting the parties' right to ultimately accept or reject the mediator's assessments. Additionally, the mediator can utilize techniques like caucusing, where they meet privately with each party, to gather information and explore settlement options without unduly influencing the parties' decision-making. By maintaining a delicate balance between evaluation and facilitation, the mediator can leverage the benefits of the evaluative approach while preserving the parties' autonomy and self-determination.

Related terms

Facilitative Mediation: A mediation approach where the mediator remains neutral and facilitates the parties' own decision-making process, without providing evaluations or recommendations.

Transformative Mediation: A mediation approach that focuses on empowering the parties and improving their interpersonal relationships, rather than solely on reaching a settlement.

Caucus: A private meeting between the mediator and one of the parties, typically used in evaluative mediation to gather information and explore settlement options.