FEATURE


This paper was originally submitted and presented at the ADR conference on 4-5 October 2012. This article examines the origin of the distinction between facilitative and evaluative mediation, and the subsequent debate concerning the use of evaluative mediation. The paper questions the apparent dichotomy between the two styles of mediation, and suggests that the common meaning attributed to these terms may have detracted mediators from a meaningful consideration of mediation styles and techniques.

Facilitative vs Evaluative Mediation – Is There Necessarily a Dichotomy?

Introduction
 
The origin of the facilitative-evaluative distinction in mediation can be traced to “Riskin’s grid”, a diagram published by Leonard Riskin in 1996 to depict different mediation orientations. The Riskin Grid has generated much discussion amongst mediators as to whether the evaluative style of mediation is appropriate and whether it can even be considered mediation. In many jurisdictions apart from the US, where this grid originated, facilitative and evaluative mediation now represent diametrically opposing styles of mediation. Some mediators have classified themselves under either end of the dichotomy, while other mediators claim to switch between both styles depending on the circumstances. This paper examines the meaning commonly attributed to both these styles of mediation, and suggests that the continual dichotomy between the styles has distracted mediators from examining more fundamental questions concerning mediation and other modes of Alternative Dispute Resolution.
 
The Riskin Grid
 
Any understanding of the facilitative-evaluative divide will not be complete without an examination of Riskin’s grid, and Riskin’s intentions in creating such a continuum of mediation orientations.1
 
Riskin set out the system below to clarify ambiguous discussions about mediation styles, as well as to supply a vocabulary describing the diverse approaches towards mediation. The grid has an intersection of two continuums – one representing the mediator’s concept of his role, and the other showing the mediator’s approach to problem definition. When these two continuums intersect, there are four quadrants which are meant to represent different mediation orientations. As Riskin later explained, his methodology was based on two questions: (i) Does the mediator tend to define problems narrowly or broadly? (ii) Does the mediator evaluate – make assessments or predictions or proposal for agreements – or facilitate the parties’ negotiations without evaluating?2 
 
In explaining the facilitative-evaluative continuum, Riskin used the following definitions:
 
A mediator who evaluates“assumes that the participants want and need her to provide some guidance as to the appropriate grounds for settlement – based on law, industry practice or technology – and that she is qualified to give such guidance by virtue of her training, experience and objectivity”;
 
A mediator who facilitates“assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator” and “can develop better solutions than any the mediator might create”. The facilitative mediator assumes that his principal aim is to “clarify and enhance communication between the parties in order to help them decide what to do”.3
 
These new concepts provided a useful conceptual framework then for mediators to cogently discuss their practice and to implement mediation training. In the light of the then ambivalence over mediation practice, the Riskin Grid has certainly contributed to the clarity and rigour of mediation theory. It is notable, however, that the grid also drew vehement criticism from mediation practitioners.
 
The Strong Reaction Against “Evaluative Mediation”
 
There was considerable discomfort amongst some mediators over the evaluative style of mediation. As Riskin himself noted, Kovach and Love emerged as the most consistent (and probably strongest) critics of the term “evaluative mediation”. They, together with other supporters of facilitative mediation, argued that evaluative mediation is an oxymoron, as evaluative activities are inconsistent with the essential attributes of the mediation process.
 
What are the tenets of mediation that seem to be undermined by the evaluative style of mediation? The following features of mediation have been identified by critics:
1.Mediator neutrality
Giving an assessment of the merits of the parties’ case has an impact on mediator impartiality or neutrality. Many mediation ethical codes enshrine neutrality as a crucial value to be upheld.4Once the mediator gives the impression that he or she is favouring one party over the other, the parties’ trust in the mediator is affected, and it may be much more challenging for the mediator to work with both parties in arriving at a joint resolution to their dispute. In this respect, Kovach and Love highlighted how evaluative activities can “shut down” the mediation process because they tend to perpetuate an adversarial climate as the parties try to convince the neutral of their respective arguments. Only a mediator who remains neutral will be able to use the tools of facilitated negotiation, such as encouraging parties to discern their underlying concerns and engaging in creative problem-solving.5
 
2.Parties’ self-determination or autonomy
Mediation’s popularity can be attributed to how it focuses on party empowerment. Unlike many other ADR modes, the allure of mediation lies in how the parties have the opportunity to exercise self-determination. They are able to craft their own solutions, voice their own thoughts and opinions and arrive at their own decisions.6When a mediator is giving directives, the goal of satisfying the parties’ needs is not met.7Riskin, when re-assessing his grid, also explained that he meant the term “evaluative” to refer to predictive, judgmental or directive behaviour that was meant to steer parties towards a particular outcome, and such conduct often interfere with self-determination.8The fundamental ethos underlying mediation appears to be undermined by evaluative activities that directly impinge on the parties’ autonomy.
 
A False Dichotomy? Unravelling the Debate Concerning Facilitate vs Evaluative Styles of Mediation
 
Speaking of facilitation and evaluation as polar opposites or completely separate, parallel tracks of dispute resolution oversimplifies both the world and the analytic model.”9
 
Many commentators observing the different views expressed about the facilitative-evaluative divide have rightly pointed out that it does not help to think of both styles as mutually exclusive or polar opposites. Such a perspective neglects the complexities and sophistication that has developed within the mediation practice. Perhaps the discussion should be much more nuanced, and should take into account the diversity and reality of mediation practice. In addition, there may also be a need to clarify what the terms “facilitative” and “evaluative” entail, in order to have a clearer understanding of this facilitative-evaluative dichotomy. I suggest the following views:
 
Basic Tenet of Mediation – Self-determination – Should Not be Undermined
 
Most mediators, regardless of their differing styles, will not disagree that self-determination is an essential value of mediation. Supporters of the facilitative style believe that parties’ autonomy should always be respected and not undermined. Even those who support the evaluative style argue that they do not necessarily impinge on self-determination, as meaningful self-determination is not possible when the parties do not have adequate legal information and informed consent.10
 
It is vital to highlight that the fundamental basis of mediation – party autonomy – should not be impinged upon, whatever style of mediation is adopted. There may be diverse ways of upholding party autonomy, but a mediator should never give the parties the impression that they are being pressured or coerced to arrive at a certain outcome. It is notable in this regard that Riskin stated that his grid was meant to describe the impact of mediator conduct on party’s self-determination, which he acknowledged was being endangered by many kinds of mediator interventions. The portrayal of extreme evaluative behaviour, including pushing the parties to accept a settlement was not, and could not, have been intended to be prescriptive of how a mediator should behave. Hence, any discussion of different styles should be done in view of the overarching value of parties’ self-determination. Any kind of technique which undermines this value, whether it is labelled as facilitative or evaluative, should then be viewed with circumspection.
 
What Constitutes Facilitative or Evaluative Behaviour?
 
The more important issue to consider is the exact meaning of the facilitative and evaluative styles. Much confusion and controversy may have stemmed from a lack of clarity over the evaluative style. Riskin first defined such a mediator as one who assumes that the parties want and need his or her guidance, and she is qualified to provide such guidance. The behaviour classified under the evaluative continuum included predicting Court or other outcome, proposing solutions and urging settlement. Since Riskin’s articulation of the evaluative style, mediators have commonly understood evaluative mediation to involve the three elements listed below: 
1.Predictive behaviour
Giving a view on what will happen in Court or other forums. In this regard, the mediator gives an assessment of the strengths and weaknesses of the case, and makes a judgment on the accuracy of each party’s views. Much of the discussion on evaluative mediation has focused on whether it is the role of the mediator to give his or her views on the merits of the parties’ dispute.
 
2.Directive behaviour
However, “evaluative” mediation has also been understood to include the mediator directing the parties towards certain outcomes or solutions. Making a prediction on Court outcome sometimes results in the mediator being directive by urging the parties to arrive at a solution that is close to his or her prediction. It is the directive part of evaluative behaviour that is particularly objectionable. It is useful in this regard to reproduce Riskin’s views given when re-assessing his grid:
 
The greatest threat to self-determination is caused by behaviour that I placed at the north end of the evaluative continuum, behaviour “intended to direct some or all of the outcomes of a mediation.”… Such interventions, however, do not rightly belong on the same continuum as most other evaluations, because…evaluations are not necessarily intended to direct an outcome and do not always have that effect. In retrospect, I should have labelled them “directive” and distinguished them from “evaluative” interventions, which…can be either directive, or non-directive, or both.11
 
It is important to recognise that predicting an outcome during mediation need not necessarily lead to directive behaviour. It has been highlighted, in this connection, that a mediator can enhance both parties’ knowledge of the merits of their claims without necessarily appearing to be siding with one party over the other.12  However, given the way evaluative behaviour has often been described and understood, it is easy to associate evaluative mediation with directive conduct. Given the direct clash of directive behaviour with self-determination, it is not surprising then that many critics of evaluative mediation oppose this style.
 
It is suggested that one cannot be too dogmatic as to whether directive techniques are glaringly inconsistent with mediation. Mediators use a range of directive techniques, some being more controversial than others. For instance, a mediator may suggest a possible solution or basis for settlement to the parties for their consideration. Most mediators are also directive as to the mediation process; he or she must be in control and decide on what has to be done at each stage of the mediation. Even when giving an opinion about the strengths and weaknesses of a case, a mediator can do so in a more directive or less directive manner; he or she could plainly state his view about the merits of the case, or he could choose to ask questions and have a joint discussion with the party and his lawyer about the case. Is directive behaviour then ever objectionable within mediation? I suggest that it is when it borders upon direct impingement on the parties’ autonomy in deciding how to settle.This usually occurs when the mediator applies considerable pressure on the party to accept a certain outcome. It is suggested that mediators have to be acutely conscious that any directive behaviour on their part can easily be perceived as applying coercion or pressure to accept a settlement. Whatever style we choose to adopt may depend on the circumstances of the mediation, but we should be chary of bordering on pushing parties to a settlement. Such tactics run counter to the ethos underpinning mediation.
 
3.Narrow problem definition
Some mediators have also equated the evaluative style with the evaluative-narrow style. In other words, they assume that the evaluative mediator would also have a narrow problem-definition of the dispute, focusing merely on legal rights and positions, and neglecting underlying interests.13
 
This way of understanding the evaluative style may be misleading. Most would agree that effective mediators do not limit the parties’ discussions only to legal positions. There are usually considerations of other issues such as relationships or financial impact. To associate the evaluative style with a narrow focus is surely inviting criticism of the evaluative approach. 
 
I have specifically underscored the above three elements that have been associated with the evaluative style in order to show that there has to be greater clarity in any analysis of the “evaluative” style.  Mediators should also be given guidance on which aspect of this style is generally objectionable. Otherwise, there is a danger of roundly criticising everything associated with the evaluative style and thus failing to assess the benefit of using particular mediation techniques. I have suggested that directive behaviour in mediation is particularly objectionable when it borders upon coercion and pressure to settle in a certain way. It is crucial for mediators to recognise also that it is easy, when predicting the outcome of a case in Court, to do so in a very directive way. Having highlighted the three elements that are commonly associated with the evaluative style of mediation, I turn now to specifically consider the element of predicting the outcome of a case in mediation.
 
Should Mediators Give an Assessment or Evaluation on the Strengths of a Case?
 
Why the Pre-occupation with Strengths of a Case in Mediation?
 
There appears to be demand in many jurisdictions for evaluations to be given within mediations, which begs the question as to why parties desire to focus on the merits of a case. There may, perhaps, be a natural inclination within most disputing parties, to focus on their positions and rights, and to have someone make a determination on this. However, looking at the issue from a mediator’s perspective, parties need to understand their alternatives to a negotiated agreement, in order to decide how to settle their dispute. In many disputes, whether the alternative of litigation is a BATNA (Best Alternative to a Negotiated Agreement) or WATNA (Worst Alternative to a Negotiated Agreement)14depends on the chances of success in Court. An effective mediator will help the parties to analyse and understand not only their underlying interests and needs, but also the strengths of their alternatives.Only then can the parties make an informed decision concerning settlement. It is, after all, true that parties in many disputes negotiate in the shadow of the law. The parties cannot gloss over their alternatives in mediation, as it is such an important factor in deciding whether and how to settle. The parties have to evaluate their alternatives.
 
The Right Question: How do Mediators Help Parties Evaluate Their Alternatives?
 
While the question frequently considered by commentators has been whether a facilitative or evaluative style should be adopted, it is suggested that the right question to ask is - what is the right approach to help the parties accurately evaluate their alternatives?I suggest that mediators use a variety of techniques to help parties evaluate their alternatives, and some techniques tend to impinge on party’s autonomy more than others. Our focus should be on assessing these various techniques, instead of debating whether one should use either facilitative or evaluative mediation.
 
In my personal observation, the apparent “dichotomy” between facilitative and evaluative mediation has led to two extreme approaches that mediators tend to adopt, which are not holistic in helping the parties understand both their interests and alternatives.One approach is to avoid any discussion of the merits of the case in mediation. This approach clearly results in an incomplete analytical process for the parties. The other approach is to focus primarily on the merits of the dispute. Again, this perspective is far too parochial, as it neglects discussion of other concerns that may be important to the parties in deciding on a settlement. This method will also easily put the parties into an adversarial and confrontational mindset and thereby hamper joint collaboration.
 
In short, a balanced approach has to be adopted, one that helps the parties to explore both their interests and alternatives.There are many techniques which mediators have been using to help the parties assess their alternatives:
1.Assessment of alternatives at a later stage of the mediation.
A premature consideration of alternatives may cause parties to be positional, and may thereby create tension that makes it difficult for parties to continue their negotiations. Some mediators have focused first on helping the parties to communicate with each other, understand each others’ interests and having a conversation.
 
2.Doing reality testing privately, in private sessions.
It is risky to talk about alternatives in the presence of all the parties in a joint session. This easily leads to a loss of face or trust in the mediator. Such sensitive discussions may best be done in private, when the party may not feel so vulnerable.
 
3.Other techniques can be used instead of giving an opinion.
There have been many tips given by practitioners on how to do this.15They include asking the parties’ lawyers probing questions, asking for a response to the opposing party’s arguments, discussing similar cases or precedents, analysing the best or worst case scenarios at trial in light of the cost and time involved or highlighting a particular aspect of the case that the mediator is “puzzled about”.
 
Conclusion
 
In summary, the debate concerning facilitative and evaluative mediation has generated much introspection and debate within the mediation community concerning what defines mediation and conversely, what cannot be considered mediation. While the original facilitative-evaluative continuum developed by Riskin contributed useful concepts to the development of mediation, the subsequent debate and polarisation of practitioners along either facilitative or the evaluative extreme may have caused confusion and also detracted from more important questions about the practice of mediation. It has been submitted in this short paper that we should return to consider the basic questions concerning the philosophy and elements of mediation. In this regard, it is suggested that self-determination is a central tenet that should not be compromised. Further, techniques are needed to help parties assess both their interests and alternatives. In helping the parties evaluate their alternatives, there are a range of techniques to be utilised; some may involve giving a direct evaluation while some may stop short of giving an opinion. In using these creative techniques, safeguards should be in place to ensure that party autonomy is preserved.
 
  Dorcas Quek
      District Judge, Primary Dispute Resolution Centre
      Subordinate Courts of Singapore
 
*The views expressed in the paper remain the author’s own opinion, and do not represent the Subordinate Courts’ position.
 
Notes
1  Leonard L. Riskin, “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1996) 1 Harv Negotiation L Rev 7.
2  Leonard L. Riskin, “Decisionmaking in Mediation: the New Old Grid and the New New Grid System” (2003-2004) 79 Notre Dame L Rev1 p10. 
3  Supra, note 2, p 24.
4  See for instance The Australia Law Council’s Ethical Guidelines for Mediators, para 2, available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=239F39DD-1E4F-17FA-D241-5CF41A0BA6DC&siteName=lca (last accessed on 10 September 2012).
5  Kovach and Love, “Evaluative Mediation is an Oxymoron” 14 Alternatives to High Cost Litig31. 
6  Kimberly Kovach, “Mediation”, in Michael L Moffitt & Robert C Bordone, Handbook of Dispute Resolution(Jossey-Bass, 2005), p 305.
7  Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition(1994) (opining that directives from mediators can overshadow the goal of satisfying the parties’ needs).
8  Riskin, supranote 3, p 18.
9  Jeffrey W. Stempel, “Beyond Formalism and False Dichotomies: the Need for Institutionalizing a Flexible Concept of the Mediator’s Role” (1997) 24 Fla St U L Rev949 p 970.
10  Jacqueline M. Nolan-Haley, “Court Mediation and the Search for Justice Through Law” (1996) 74 Wash U L Q47, app.  at 101-102  at 65-66 (arguing that authentic self-determination can only be exercised when parties understand both their legal and non-legal interests).
11  Supra, note 2, p 20.
12  See John Bickerman, “Evaluative Mediator Responds” (1996) 14 Alternatives to High Cost Litig70  (stating that parties do not lose trust in mediators or consider them biased because they provide a neutral assessment of their litigation risks). See also James H Stark, “The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, from an Evaluative Lawyer Mediator” (1997) 38 S Tex L Rev769 p 777. 
13  Riskin, supranote 3, p 20. According to conventional principled or interest-based negotiation theory, the term “position” is something a party has decided upon, whereas “interests” are what caused the party to so decide. Interests include each party’s needs, desires, concerns and fears. See Fisher, Ury & Patton, Getting to Yes: Negotiating Agreement Without Giving In( Second Edition) p 40-55.
14  The term “alternative” here is used in relation to conventional negotiation theory, referring to the results one can get obtain without negotiating. A person’s Best Alternative to a Negotiated Agreement is thus the standard against which any proposed agreement at a negotiation should be measured. Fisher, Ury & Patton, Getting to Yes: Negotiating Agreement Without Giving In( Second Edition) p 100-106.
15  See James H Stark, The Ethics of Mediation Evaluation supra note 13, p 775 and note 7 of the article. Margaret Shaw identifies a few activities along the “Evaluation Continuum”, questioning parties about their case and elements of proof; asking a party to respond to the other side’s arguments; engaging in “risk analysis”; providing opinions about various elements of each party’s case; stating opinions about the strengths and weaknesses of a party’s entire case; providing opinions about the range in which a case is likely to settle; providing opinions about how a Court is likely to decide the case; and proposing a settlement.