September 24, 2019 Practice Points

Evaluation in Mediation

The conversation should change from whether a mediator’s style is evaluative or facilitative to how effective the mediator is.

By Joan Stearns Johnsen

Much is made of whether the appropriate mediation model for a commercial dispute is evaluative or facilitative mediation. Most litigators will say they prefer the evaluative model. Question answered.

I think a better question is not whether or not to evaluate, but rather how should a mediator evaluate?

Mediation terminology is incredibly imprecise. When defining the term evaluation, included are direct statements from a mediator such as “you have a 10 percent chance of getting X” to a raised eyebrow indicating skepticism and disbelief and everything in between. This can be more than confusing in a state like Florida where the certification rules prohibit certified mediators from evaluating. Even there the language is open to interpretation. The rules speak to undue influence and party self-determination. But exactly what conduct is likely to interfere with party self-determination? And at what point does influence become undue influence?

I think it would make sense if the conversation were less about facilitative vs. evaluative and more about how a mediator evaluates appropriately and effectively.

The threshold issue on how is also about when. The common trope about evaluation among commercial mediators is many mediators describe their style as a hybrid of evaluative and facilitative. They are, they say, facilitative in the morning and evaluative in the afternoon. This is sort of true, but again, it depends on what is meant by evaluative. As a general matter, a mediation is about the parties. Most of the time, the structure includes an information gathering phase where each party has an opportunity to tell her story. This phase is essential regardless whether the mediation is commercial or not. In addition, all disputes involve emotion to a greater or lesser degree. As Fisher and Ury said over 40 years ago, “A basic fact about negotiation, easy to forget in corporate and international transactions, is that you are dealing not with abstract representatives of the ‘other side,’ but with human beings. They have emotions deeply held values, and different backgrounds and viewpoints; and they are unpredictable.” Humans need to tell their story. They need to vent. Some more than others, true. But better never to assume. Best to test. The time spent listening is time well spent. I agree that one should not begin the day with an evaluation regardless of one’s style.

Given that we are always dealing with human beings, it makes sense to look to psychology when we consider how best to evaluate. We know from behavioral economics as well as from our own life experiences that it is incredibly difficult, if not impossible, to change someone’s deeply held beliefs. We know each time we futilely try to influence someone’s political leanings exactly how powerful confirmatory bias actually is. Confirmatory bias is the cognitive bias that people tend to believe information that is consistent with what they already believe and to dismiss as false whatever conflicts with their existing beliefs. In most instances where the advocates are seeking evaluation from a mediator, the goal is to cause someone to question their deeply held beliefs and their assessments—such as “I have a great case; I can’t lose; I should not settle for a penny less that what I am asking for.” Because of the significant challenge of actually influencing beliefs, the technique is important, and the mediator should be skilled in process as well as subject matter.

For this reason, the emphasis should be on the how to evaluate rather than on the whether to. Therefore, the conversation should change from whether a mediator’s style is evaluative or facilitative to how effective the mediator is.

Joan Stearns Johnsen is with JSJ-ADR and a professor at University of Florida Levin College of Law in Gainesville, Florida.


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