Evaluative mediation: Do not throw the baby out with the bathwater

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Many mediators will tell you that evaluative mediation produces less satisfactory agreements. However recent research shows that the relationship between evaluative mediation and the level of satisfaction of stakeholders with their agreement is not as bad as these mediators have portrayed.

According to research, there are some evaluative strategies that are particularly related to dissatisfaction with the agreement. For example, interventions aimed at discouraging the parties to pursue their claims can affect the level of satisfaction even though they may facilitate the conclusion of an agreement. Among the interventions to be avoided, we find the following strategies: 
  • Highlighting the risk of losing everything during the process 
  • Decreasing the position of a party by highlighting the weaknesses of his argument 
The practical implication of this research is to avoid discouraging parties, while ensuring we “do not throw the baby out with the bathwater” by rejecting full evaluative mediation. Indeed, some evaluative strategies can be useful in helping the parties to enter into an agreement without necessarily reducing the level of satisfaction with the agreement. For example, I like to help the parties see both sides of the coin by highlighting the strengths of the other argument. This research highlights once again the importance of avoiding dogmatism in mediation because each approach can be useful if it is used appropriately. 

Reference

Wall, J.A., Dunne, S. and T.C. Chan-Serafin. , 2012. «The effects of neutral, evaluative, and laundry mediator strategies», Conflict Resolution Quarterly, 29 (2), p. 127-150.

Comments

Colin Rule said…
When I first got involved with ADR, evaluative mediation was an oxymoron -- but now, 20 years later, it's fairly commonplace. As arbitration as fallen in favor over the last 5 years evaluative models for mediation have stepped up to fill the gap. I think for transactional disputes it can be a better fit with the preferences of some parties, but it can still be ill advised in less transactional matters. It is up to the neutral to determine the appropriateness of evaluative models in each situation, and to make sure never to impose an evaluative approach on a dispute where it is a bad fit.
March 16, 2013 at 4:19 PM
Bev Bradburn-Stern said…
When directing a court connected ADR program we called what you refer to as Evaluative Mediation, either Early Neutral Evaluation or Case Evaluation.
When Mediation has such multiple definitions I think it confuses consumers and blurs ethical bright lines, as in mediators not giving legal advice. Early or
Case Evaluation often led into mediation but parties knew they would get some feedback regarding merits of their case. Often the evaluator would offer
mediation before giving his/her evaluations but after parties had HEARD each other, had a good picture of what the other side had working for them, etc.

These were very effective modalities, required practioners with considerable skill sets. I think it would be wiser to differentiate evaluative processes
from mediation so consumers have a clearer sense of what they are signing on for and what they want...that better meets "self-determination
standards."

Bev Bradburn-Stern, Atlanta, GA
March 21, 2013 at 9:23 AM
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