Facilitative vs. evaluative mediation 'techniques'

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Edmund Sikorski

In facilitative mediation, the mediator does not offer an opinion or recommend how it should be settled. He/she remains neutral, and assists both parties and attorneys to reach a reasonable settlement or solution.

Techniques include:

• Treating statements of positions as problems to be discussed rather than ultimate solutions

• Facilitating disclosure of information by emphasizing that all parties must have the same information

• Employing methodologies to bring monetary demands to manageable proportions

• Focusing on efforts to reveal all possible alternatives and combinations

• Functioning as a coach to hold in check reactive intuitive emotional thinking and encouraging thinking that is effective, thoughtful, and that resists impulsivity

In evaluative mediation, the mediator forms and expresses views.

Techniques include:

• Assessment of the success or failure of a single issue

• Assessment of the overall outcome

• Assessment of a numerical probability of success or failure

• Predicting the value of an award

The notion of “neutrality” presents a contradiction for evaluative mediators. The moment a mediator articulates one or more of the assessments/predictions above, he/she is no longer neutral. In Michigan, this also is called “Case Evaluation” pursuant to MCR 2.403.

The evaluative mediation process has at least four major flaws:

• Parties assume or want to believe there is some level of accuracy in the mediator’s suggestions about what the future holds

• Parties can use the mediator as a “bad cop” to sell the case to decision makers

• Parties try to convince the mediator of the strengths of their case, blending and confusing the mediator function with the arbitration function.

• Evaluative mediators encourage the parties to resign themselves to a settlement that both sides are unhappy with, confusing the mediation process with the judicial settlement conference process.

New empirical research published by the Maryland Administrative Office of Courts recommends the District Court ADR Office “encourage and support ADR practices that focus on eliciting participants’ solutions and reflecting back to participants, and discourage strategies that are heavily focused on caucus and ADR practitioners offering their own solutions and opinions.”

This is significant not only to ADR practitioners, but also counsel participating in the ADR process.  It is called grievance and malpractice claims.

At the Spring 2013 National Legal Malpractice Conference of the American Bar Association, the panelist presented “Settle and Sue Again: Strategies and Snares.” 

Among the list of “Categories of Claims”:

• Openly disgruntled ex-clients or current clients regretting deals

• Judicial award less than declined settlement offer

• Forced to settle because attorney incompetent or unprepared

• Client claims he/she did not understand or did not agree with what was happening

• Post-Mediation events the client did not see coming such as taxability of recovery, enforcement/collection process under settlement agreement, attorney fees charged to client, release language too narrow/broad

• Lawyer becomes target for actions taken or not taken due to actions or non-actions

The entire concept of facilitative mediation is predicated on the theory that the mediator owns the process while the participants own the result. The conduct of a fair and impartial process is central to the legitimacy of decisions reached and the individuals’ acceptance of those decisions.

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Recipient of 2016 National Law Journal ADR Champion Trailblazer Award, Edmund J. Sikorski Jr., J.D., offers civil mediation services and is an approved Washtenaw County Civil Mediator and a Florida Supreme Court Certified Circuit Civil and Appellate Mediator, residing in Ann Arbor. He can be reached at edsikorski3@gmail.com.

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