At a mediation I handled recently, I walked into the conference room as one party’s lawyer was explaining to her client the differences between “facilitative” and “evaluative” mediators. “I’m a facilitative mediator,” I proudly told the lawyer and client. I said that because that is how I prefer to think of my own style, and because that is a style that at least to me seems more consistent with the ideals of mediation. Evaluative mediators act more like judges, even though their opinions are not binding on the parties. Evaluative mediators can be quite effective, if that is what the parties are looking for. Most of the time, however, I feel that a third opinion of the merits of a case–on top of the opinions of counsel for each side, is unnecessary and can even be counter-productive. That kind of resolution limits the parties’ ability to agree on their own resolution of their situation, based on criteria that the parties themselves believe are important, rather than submitting to what somebody else thinks. And a neutral evaluation can make it harder to settle a case, if one or both parties happens to disagree with the neutral’s opinion.
Anyway, later in that same mediation in which I had advertised myself as a facilitative mediator, I found myself, after having spent a long time trying to empathize with the other party’s justifications for their behavior, forcefully listing for that party, each of the things that I thought he had done wrong that had caused the other side to assert the claims they were making. I saw a light go on indicating that, in addition to recognizing how he might have handled the situation differently, this party was also beginning to understand how he might lose the case. “Not being so facilitative now,” I thought to myself. “It sure sounds like I am laying down the law.” Worse, nobody had even asked for my opinion.
It so happened that this party was representing himself, which introduces a whole other topic for discussion. In the context of the topic of evaluation vs. facilitation, what the party’s unrepresented status means is that he had no one to play the role of legal adviser or counselor except himself. And in that situation, it is more likely that the mediator is going to fill that void to some extent. In other words, even though I am never going to act as an unrepresented party’s attorney, and I will usually caution the unrepresented party that they should not see me in that role, I am probably more likely to be somewhat more evaluative in the context where a party has no one else to provide a more objective assessment of their situation.
Anyway, my gambit worked in this case, and the case settled shortly after I had explained to this party precisely where I thought he had messed up. I think it worked because, before I started my lecture, I had spent a long time allowing the party to express himself, and I had made a genuine effort to understand his feelings about the case. After that, he trusted me enough to be ready to acknowledge the mistakes he had made that had helped create the conflict.
Funny thing was, when I went back to talk to the other party, I reverted to my role as Mr. Facilitative, telling them that they should rely on the opinion of the fine lawyer they had brought to the mediation for an assessment of the value of the case, not me. And even when they asked my opinion of the fairness of the settlement they were about to agree to, my first response was, “why is my opinion important to you?” We say these kinds of things without thinking, because we are trying to adhere to conceptions of what is appropriate to our role. Then I relented, and reassured them that I too thought they were making a wise decision and the number they were agreeing to was fair, and much better than the alternative of walking away with no agreement.
The moral being, I guess, that none of us can claim to be quite as doctrinaire or consistent in our approaches to conflict resolution as we might like to think.
(Judge Judy: known for being highly evaluative and opinionated)