In many states, litigants in every civil case must participate in some kind of alternative dispute resolution. This is generally considered a Good Thing, because as everyone knows, mediation resolves cases.
Except not always.
Mediation can resolve cases, but whether it is productive or a waste of part of (or all of) a day often depends on the mediator and the style of mediation he or she practices. To make the most of mediation, choose your mediation style carefully.
Types of Mediation
- Evaluative, in which the mediator helps the parties understand how the judge and jury might decide the case (sometimes called Directive mediation when the mediator is an expert).
- Facilitative, in which the mediator simply tries to help the parties analyze and understand their options.
- Transformative, in which the goal is to try to solve the dispute and repair broken relationships.
Using Evaluative Mediation in Connection with Litigation
In civil litigation, the most effective mediation style is usually evaluative because it focuses on liability and damages. In litigation, the question is almost always who will win and how much money they will win. Both parties have to acknowledge the strengths and weaknesses of the claims and defenses in order to move towards a resolution.
Evaluative mediators generally separate the parties into different rooms, with the mediator carrying offers and counteroffers back and forth. While in the room, the mediator helps each party understand the strengths and weaknesses of the claims and defenses, and attempts to get everyone to meet in the middle.
Judges or experienced litigators are often the best evaluative mediators, since they can draw on their experience in the courtroom to help the parties evaluate and analyze the case. Federal magistrate judges are especially good at resolving cases, usually through evaluative mediation. In federal court, I generally prefer to mediate with the magistrate judge. In state court, I usually try to mediate with a retired judge for the same reason. Most of the successful mediations I have been involved in were settled with the help of a judge.
An evaluative mediator tries to force the parties to see their case through the eyes of a judge and jury rather than with the optimism of a litigant. This is what gets the parties to move up or down from their settlement positions and gets the case resolved. Good evaluative mediators also take into account any goals the parties may have the could not be resolved in court.
In the end, when it comes down to money an evaluative mediator is usually the best way to get a case settled.
When to Try Facilitative or Transformative mediation
Most litigators have found themselves in a facilitative or transformative mediation for one reason or another. This is usually a waste of time when the claims and damages accurately represent the real dispute between the parties — which is often the case. Trying to come to an agreement on the right result or repair broken relationships is pointless when you just need to come up with a number.
If the parties could figure out the right number themselves (or with the help of their lawyers), they wouldn’t have ended up in court. So facilitative mediation generally isn’t much help. And once the parties end up in court, kissing and making up is rarely a goal, so transformative mediation just misses the point entirely.
However, sometimes the real dispute is something other than the claims and defenses. In those cases, facilitative or transformative mediation can be helpful. For example, transformative mediation could be effective in family law cases in which relationships between spouses and children will survive the litigation. Similarly, facilitative mediation might be useful where both parties share a goal — especially one not addressed by liability and damages — but disagree on how to reach it.
Save facilitative and transformative mediation for cases better-suited to the “touchy-feely” approach of those styles. When liability and damages are the only questions you need to resolve, stick with evaluative mediation.
Originally published 2011-10-21. Last updated 2015-03-13.
Featured image: “Businessman in dilemma choosing between right and wrong path.” from Shutterstock.
See also “Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation” from Mediate.com. ↩