This is the first of a three part series on the spectrum of mediation. The spectrum of mediation host three main types or styles of mediation from the most direction and influence of the mediator to the least these types are, Evaluative Mediation, Facilitative Mediation and Transformational Mediation. This post focuses on what Evaluative Mediation is and when it is useful. It will conclude with an other type of dispute resolution that is not, mediation, but may be used to further negotiations between the parties.
What is Evaluative Mediation?
Like all forms of mediation, in evaluative mediation a neutral third party works as the mediator. The mediator evaluates the merits of each side’s argument and points out where their argument or case may fail. Accordingly it is geared towards settlement of the dispute at hand. Often the parties to the mediation are in different rooms from very early in the mediation. If the mediator elects to keep the parties separate and take information and offers of settlement from one party to another this is called shuttle mediation.
Who Practices Evaluative Mediation
The mediator practicing evaluative mediation requires expertise in the subject matter of the case. Both parties selected an evaluative arbitrator to leverage their expertise to help craft a settlement. In many cases each side is hoping that the evaluative mediator will agree with them and tell the other side they are going to lose. It is important to remember that litigation is never a sure thing. Often the evaluative mediator will point out the weaknesses in each sides case should they continue on to litigation. By showing each side the weakness of their case, each has a chance to look at their dispute from a more pragmatic angle. Adjusting the perspectives of the people involved can help them realize the ideal result is a compromise that each side can live with.
Why Should I/Should I Not Use Evaluative Mediation
Evaluative mediation is often the quickest of the types of mediation. The goal of the mediator is not to rebuild relations, create understanding or empower the parties. Most of all, the goal is the deal. This pursuit of a deal can be a benefit for parties with well established relationships that have a contractual dispute. It can also be beneficial for parties that don’t want and will have no further dealing with each other. Such is the case with some (non-union) employment mediations. In these cases the employer has terminated an employee and does not want to reemploy them. It’s important to know that using strictly settlement directed mediation in discharge cases may create risk to reputation. Sometimes taking the time and effort to work on mutual understandings can pay off.
Early Neutral Evaluation
Just beyond highly evaluative mediation is Early Neutral Evaluation(ENE). ENE is outside the mediation spectrum but is a form of dispute resolution. ENE is non binding arbitration done during the early phases of a dispute. Like a highly evaluative mediation, ENE has a subject matter expert as a neutral. However in ENE the neutral is evaluating the arguments of the sides and making a prediction. The non binding nature of ENE allows the parties to reposition themselves in future negotiations or mediations.
Our Approach to Mediation
Wakely Mediation provides employment, workplace, grievance and collective bargaining mediation. We believe that the process of mediation needs to be tailored to the needs of the parties and to the specific case. The settlement is almost always of importance to the parties to mediation and evaluative methods are a tool in our tool box. However, our personal philosophy is that mediators can work to create value for all parties to a mediation. Whatever the evaluation of a case is, it’s important to start with an exploration of the needs of the parties and attempt to find a solution that adds value for everyone. If you are interested in learning more about how Wakely Mediation can help you in your dispute, please contact us for more information.