How to Pick a Mediation Style

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

There are basically three types of mediation:1

  1. 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).
  2. Facilitative, in which the mediator simply tries to help the parties analyze and understand their options.
  3. 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.

  1. See also “Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation” from


  1. Avatar Arnold Zeman says:

    I’m afraid to say that this post continues the widespread misunderstanding among ADR specialists about transformative practice. The practice is really just a matter of taking self-determination seriously. Transformative mediation is party-driven from the bottom-up: as such, there is no ab initio goal on the part of the mediator ‘to solve the dispute and mend broken relationships’. The transformative mediator views conflict as a crisis in human interaction and works solely to support the parties’ own efforts to change the quality of the conflict interaction from negative and destructive to positive and productive. How? By supporting each party moment-by-moment as shifts occur in their agency (usually referred to as empowerment) and as shifts occur in their openness to the other (usually referred to as recognition). If the parties wish to solve the dispute and such a solution is possible, then they will, but not because the mediator has that as her goal. Rather, it will be because the mediator supports their decision making. So it’s not a ‘touchy-feely’ approach; rather it’s a model based on a communications paradigm not on a negotiation pattern.

    • Sam Glover Sam G. says:

      Points taken, but that still sounds completely unhelpful for at least 90% of civil lawsuits.

      • Avatar Dan Simon says:

        That’s just not true, Sam. The transformative approach is far more likely to settle cases than the evaluative approaches you are accustomed to. I know of no evidence to the contrary, my own mediations of civil cases have led to a very high proportion of settlements, and the postal service’s transformative program showed an 80% closure rate in thousands of transformative mediations of workplace discrimination claims. The reason the transformative approach works is that it greatly reduces resistance by the parties. Since they experience no pressure or brow-beating by the mediator, they lower their defenses and take responsibility themselves for stepping up and making good choices. Everyone at an evaluative mediation knows that the mediator’s scare tactics are merely that, so they dig in their heals and hope that those tactics have a greater impact on the other party. Meanwhile they also increase their demonization of each other from the separate rooms. The prevalence of these outdated approaches is simply the result of referring attorneys preferring to remain comfortable with a process they know. The transformative approach does often require the lawyers to have conversations with each other in front of the clients (though they often rise to the occasion and do a great job providing meaningful information to the clients about the arguments on each side – which is far more helpful in clients’ cost-benefit analysis than a mediators’ simplistic attempts to push compromise). Further, face-to-face negotiations that are well-supported by a skilled transformative mediator simply lead to better decision-making by all parties, as they ask each other pertinent questions that help them understand each other’s likely reactions to different offers or demands. The distrust that increases from separate rooms is often the cause of impasse in civil cases – many of those cases would settle in a transformative mediation.

  2. Avatar Dan Simon says:

    Well said, Arnold. Parties to civil litigation are notoriously dissatisfied with all aspects of litigation. Sam’s attitude dooms his clients to stay in that paradigm, where an outsider’s guess about what a judge might do is assumed to be the most helpful bit of information. This assumption ignores the reality of what litigating clients often say, things like “it’s not about the money” and “I refuse to be treated this way” and “it’s a matter of principle.” Litigators traditionally ignore what the dispute is fundamentally about for their clients; the litigators try to talk their clients into treating the problem with a cold cost-benefit analysis, as opposed to supporting the clients in addressing the dispute in a way that is meaningful for them. Mediators that allow the parties to have a meaningful conversation create the possibility of a process that leads to far better results. The US Postal Service’s transformative mediation program led to 80% of the complaints needing no further action and 90% satisfaction with the process reported by both management and employees. No one has done similar research on evaluative mediation, but I’m guessing similar settlement rates, much lower party satisfaction, and much higher post-settlement trouble.

  3. Avatar Darren Lee says:

    I think that there’s something to be said for each approach. The vast majority of civil/commercial mediation tends to benefit from the mediator being experienced enough to know when to pull the right trick out of the bag. “Touchy-feely” it might well be Sam, but I’ve seen cases where seemingly intransigent parties can be brought together through a deeper understanding of the reasons for conflict, their attack dog lawyers be damned. On the evaluative side, grenade-throwers on both sides can often benefit from having their ‘heads banged together’ and made to compromise once they realize the ruinous costs of continued litigation and any potential weaknesses in their case. Most of our Academy Members at NADN got where they are precisely because they’re prepared to adapt their approach once they’ve got a feel for the temperature in the room.

  4. Avatar petercabrera says:

    Cost is always a factor in making the decision about which process to use to resolve a case. A collaborative case will cost more than a case in which two parties simply use a mediator and do not have individual counsel. Nice article.

  5. Avatar David K. Hiscock says:

    Is this what it means to respond to a zombie thread?

    I find Sam’s breakdown & description pretty accurate.
    And a reason to consider whether/when the Facilitative model is appropriate for at-court mediations.
    I mention this as a person who has been associated with a non-profit ADR group for more than 15 yrs.
    The org’s brand-identity is deeply rooted in the facilitative model.
    They have some fondness for the transformative model.
    And something that looks & feels like hostility towards the evaluative/directive model.
    Sudents of irony will appreciate their practice of this smug prejudice.
    If you’re from the org and take offense, the shoe fits, or you may be one of the exceptions that proves the rule of speaking in generalities.

    In defense of the Facilitative model – I’ve seen some resolutions that were wholly unexpected and caught my breath in amazement.
    These are a part of the “intermittent reward system” that drives facilitative mediators to press on, is spite of crushing disappointment, looking for the _next_ time folks actually look at each other, listen to each other and each others’ interests and values.
    I’ve got to tell you, when it happens, it’s _great_.
    The Facilitative mediators I respect the most are very patient folks.
    And there are others, but referring to them here would not be productive.

    Zero sum game? Stick with the Evaluative model and serve your clients with time/cost efficiency they’ll appreciate. Use your counseling skills before or after the session to deal with perceived (or actual) non-monetary issues.

    If there are non-monetary issues (and there usually are) look for the opening/opportunity to explore an alternative to framing the case as a zero-sum game. If _both_ sides are willing to do this, the Facilitative model may be very rewarding.
    If both sides _don’t_ buy in, and you continue to press for the Facilitative model, you’re bringing a knife to a gun-fight.

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