Evaluative Mediation

Definition

Evaluative mediation is a process where a mediator actively assesses the strengths and weaknesses of each party's case and offers opinions or recommendations about possible outcomes. This approach contrasts with facilitative mediation, where the mediator focuses more on facilitating communication and negotiation without providing personal opinions. Evaluative mediation can help parties gain insights into their positions and encourages them to consider realistic solutions based on the mediator's evaluation.

5 Must Know Facts For Your Next Test

1. Evaluative mediation is particularly effective in cases where parties have strong adversarial positions, as it helps them understand the potential outcomes of their cases.
2. The mediator in evaluative mediation plays an active role by providing feedback about the likely court decisions, which can guide parties in making informed choices.
3. While evaluative mediation can lead to quicker settlements, it may limit creative solutions since parties might focus more on the mediator's assessment than on exploring their interests.
4. In some jurisdictions, evaluative mediation is used as a prelude to litigation, helping parties assess their cases before they engage in formal court processes.
5. Evaluative mediation is often preferred in commercial disputes where financial stakes are high, and parties are seeking pragmatic solutions based on legal realities.

Review Questions

• How does evaluative mediation differ from facilitative mediation, and what are the implications of these differences for dispute resolution?
  • Evaluative mediation differs from facilitative mediation in that evaluative mediators assess the merits of each party's case and may offer opinions on outcomes, while facilitative mediators focus solely on enhancing communication between the parties. This difference impacts dispute resolution by influencing how parties view their options; evaluative mediation can provide clarity and direction but may also stifle creative solutions compared to facilitative approaches. As a result, the choice between these styles can significantly affect how disputes are resolved and the satisfaction of the parties involved.
• What are some advantages and potential drawbacks of using evaluative mediation in high-stakes commercial disputes?
  • Using evaluative mediation in high-stakes commercial disputes offers advantages such as providing parties with a clearer understanding of their legal positions and potential outcomes, which can expedite decision-making and lead to quicker settlements. However, potential drawbacks include the risk that parties may become overly reliant on the mediator’s assessments instead of engaging in creative problem-solving. This focus on evaluation might limit exploration of options that could lead to mutually beneficial outcomes and hinder collaboration between the parties.
• In what ways can evaluative mediation shape the dynamics of power between disputing parties, and what implications does this have for the outcome of the process?
  • Evaluative mediation can shape power dynamics by placing significant weight on the mediator's opinions, which may inadvertently empower one party over another depending on how well each party's position aligns with the mediator's evaluation. This dynamic can create an imbalance where one party feels validated while the other feels disadvantaged or pressured to conform to the mediator's recommendations. Consequently, this imbalance may affect not only the settlement reached but also the relationship between the parties moving forward, potentially leading to ongoing tensions or dissatisfaction with the resolution process.

Related terms

Facilitative Mediation: A type of mediation where the mediator helps parties communicate and negotiate, focusing on their needs and interests without imposing any judgment or opinion.

Settlement Conference: A meeting, often led by a judge or a neutral third party, aimed at encouraging parties to settle their disputes before trial by discussing possible resolutions.

Mediation Agreement: A document that outlines the terms agreed upon by the parties during mediation, including any resolutions reached or future actions to be taken.