Evaluative and facilitative mediation are two distinct styles of mediation that share a common objective —the resolution of the dispute being mediated. Unlike a facilitative mediator, an evaluative mediator often actively assesses the legal merits of each party's case and frequently offers opinions or suggestions to help facilitate a settlement. In this mediation style, the mediator takes a more directive role, providing substantive feedback and, if necessary, offering assessments or opinions regarding the relative merits of the parties' claims and the likely outcomes at trial. If you believe an evaluative mediator is appropriate for your case, there are certain qualifications and characteristics to look for, a few of which are outlined below:
- Authority and credibility: Effective evaluative mediators must have credibility with counsel and the parties. Their legal expertise or professional reputation gives their assessments weight, making parties more likely to listen, even when the news isn't what they want to hear. The best evaluative mediators command the respect of the mediation participants.
- Sharp case assessment: Evaluative mediators should objectively evaluate the parties' respective positions, applying legal principles and industry standards. In essence, an evaluative mediator has to be able to view the case as would a judge, jury, or arbitrator.
- Directness: Evaluative mediators should directly assess the strengths and weaknesses of some or all of a party's argument or position. Delivering a negative assessment is unpleasant, but it can be a core function of the evaluative mediator. An effective evaluative mediator must also be able to challenge unrealistic positions by explaining legal or practical limitations and risks.
- Information processing skills: Evaluative mediators quickly cut through the noise, identifying the core issues and asking pointed questions that keep the mediation focused and efficient. These qualities typically develop with years of experience handling complex matters.
Consider a simple example. In a contract case, the Defendant, represented by competent counsel, believes it has a sure-fire statute-of-limitations defense. As a result, the Defendant believes the case has a settlement value at or close to zero. The Plaintiff believes that under applicable caselaw, the statute of limitations began to run far later than the Defendant asserts, and that the case is not time-barred. The Plaintiff, therefore, believes there is no defense to its claim for breach and that it is entitled to damages in excess of $10 million. Both parties filed for summary judgment on the issue, and the Court denied both motions with little guidance as to the basis for the denials. In this scenario, neither party is motivated to move off its position.
The evaluative mediator objectively analyzes the parties' respective positions. Then, when speaking directly to the Defendant, points out any legal or factual flaws in the Defendant's position. The same is true concerning the Plaintiff's position. Because the mediator is both credible and direct, the parties receive important guidance regarding the perceived merits and risks associated with their respective positions and, with that knowledge, hopefully move closer to a resolution.
Some cases settle simply by payment from one or more parties to another party. Most cases are more complex and require creative solutions. The best evaluative mediators sometimes propose settlement options that the parties had not previously considered but which effectively bring the parties together. Similarly, an evaluative mediator may be called upon to make a mediator's proposal. These kinds of creative solutions often require a mediator's strategic thinking.
Because an evaluative mediator may need to deliver unwelcome news about a party's argument or position, he or she must possess superior communication skills. While this may require an evaluative mediator to be critical and/or direct, he or she must do so in a way that maintains the trust and confidence of the party receiving the feedback. This can be difficult, but the message must be delivered in a way that shows the mediator is both impartial and neutral.
The goal of most mediations is to reach a resolution. To do that, evaluative and facilitative mediators must have emotional intelligence, the ability to read people, patience, and persistence. This could include keeping an open line of communication with the parties' counsel following a failed mediation. The best mediators must be willing to work well past the time scheduled for the mediation, and to follow up with new ideas in the days and weeks following any mediation that does not result in a settlement.
Key Takeaways
- Not every case requires an evaluative mediator. A facilitative approach may be more appropriate in the early stages of a dispute, when facts are still being developed and legal positions are still being formulated.
- Similarly, a facilitative approach may work best when the parties have relatively equal bargaining power or where the difference in the parties' positions is not overly significant.
- However, when there is a significant power imbalance or the parties' respective positions reflect fundamental differences, a skilled evaluative mediator — credible, analytical, direct, and strategic — can make all the difference.
Previously published in the July/August 2025 issue of the Cleveland Metropolitan Bar Journal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
