The debate over the merits of facilitative vs. evaluative mediation never seems to end, but is it an artificial distinction in the mediation of commercial disputes?
A recent article in the Australasian Dispute Resolution Journal suggests that it is.
The author, Troy Peisley, a mediator and arbitrator with more than 20 years experience in commercial litigation and forensic accounting, argues in favour of “blended mediation”, which combines the facilitative and evaluative models and employs a “mediation matrix” to evaluate both the qualitative and quantitative aspects of the dispute.
It’s an interesting model and seems equally relevant to the realities of commercial mediation in Canada.
Under the blended mediation model, the opening session of the mediation follows the traditional facilitative path, with opening statements, analysis of the issues and risks relating to the dispute, exploration of interests and joint problem solving. The mediator actively engages in questioning the parties, framing the issues, and brainstorming options, but offers no opinion or recommendations on the possible outcomes. The mediator will typically also meet with the parties in private sessions to further probe relative strengths and weaknesses and invite the parties to propose solutions. This phase usually includes further negotiations, either directly between the parties or through a “shuttle” process.
If the parties do not agree on a settlement, then the mediator adopts a more evaluative role. The mediator may express an opinion as to which party has a greater chance of success if the dispute goes to arbitration or litigation. The mediator may also make settlement proposals, to attempt to bridge the current gap between the parties. The parties may choose to engage in further face-to-face or indirect negotiations based on one or more of the mediator’s proposals or their own alternatives. In many cases, this evaluative phase is enough to break an impasse between the parties.
In fact, it seems that this blended model is what happens in most commercial mediations, regardless of whether mediators hold themselves out as facilitative or evaluative. At some point in the process, the parties always want to know what the mediator thinks, especially if the mediator has some particular subject matter expertise. The mediator often has ideas for settlement that the parties have not raised.
The mediator is in a position to float settlement proposals that the parties themselves are unable or unwilling to make. There is no attachment to mediator proposals; both parties are free to accept or reject them or to make alternative proposals.
The challenge for the mediator is to know when to shift from a more facilitative to a more evaluative approach. Sometimes, it’s obvious. The parties are at an impasse; they may have resolved some of the issues but are stuck on something – often money. Sometimes, it’s not so clear. The parties are continuing to talk, but going around in circles on a number of options. They aren’t making any progress and need a push from the mediator. The mediator may make an evaluative assessment of the options. This one is not practical; that one is too expensive; another requires some third party action or agreement. In this way, the mediator can help direct the parties toward an option that none of them thinks is ideal, but all can agree is acceptable (or at least better than the alternatives).
The best mediators are able to shift back and forth between facilitative and evaluative styles, as the situation requires. The parties may not even realize that the mediator is doing this. The mediator is simply reacting to the internal dynamics of the dispute, helping the parties define their needs and wants, evaluate the settlement risks and opportunities and negotiate toward the desired goals.
Peisley points out that the facilitative/evaluative divide has been almost an article of faith in mediation circles for the past 15 years (citing Professor Leonard Riskin’s theory of mediator orientation as facilitative or evaluative and the problem definition as either “narrow” [position-based] or “broad” [interest-based] – Riskin, “Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed” (1996) 1 Harvard Negotiation law Review
This conceptual framework remains a very useful way to view the mediation process, to select a suitable mediator and to prepare for the mediation itself. But it can also be a trap, putting both the mediator and the parties into artificial boxes. Peistley’s view of mediation as a blended process is more nuanced and better reflects the reality of commercial mediation. Consciously adopting the blended model is likely to be far more effective than adopting either a pure facilitative or evaluative approach.
For a more detailed analysis of the blended mediation model and a sample mediation matrix see:
Peisley, Troy, “Blended mediation: Using facilitative and evaluative approaches to commercial disputes” (2012) 23 ADJR 26