Choosing the Right Mediator -- Evaluative vs. Facilitative Mediators

For most divorcing couples, the introduction to a mediator comes toward the end of the lawsuit when a judge or court rule orders mediation in an attempt to settle the divorce and clear the trial docket. Typically, the couple’s lawyers pick the mediator, sometimes a retired judge or court commissioner. The mediator engages in “shuttle diplomacy,” moving between two lawyers and their clients negotiating in separate rooms. The mediator typically practices what we call “evaluative mediation,” which means he/she feels free to evaluate and communicate the merits and weaknesses of “legal positions” taken by “each side.”

By giving his/her opinion as to what a judge might do, the mediator gets involved in the content or “what” of the negotiations. The imminent trial date before an unpredictable judge provides a powerful incentive to settle the case that very day. That’s what usually happens. Very few divorce cases go to trial. 

The downside to late-stage evaluative mediation is that it does not repair the damage to the couple’s relationship aggravated by the psychic and financial costs of litigation. These are resolutions based on one spouse’s ability to defeat the other spouse through reference to the law.  These outcomes usually feel “win-lose” to the parties involved. The pressure of settling on the eve of trial only adds to the feeling of loss and dissatisfaction.

On the other hand, facilitative mediation occurs when the decision to separate or divorce has been made – not after the legal motions, hearings, depositions, and briefs. Facilitative mediation focuses on the couple’s respective interests and needs. It is very different than mediation taking place “on the courthouse steps.” 

In facilitative mediation, the mediator owns the process, but the parties own the content.  The process can be defined as the ways the spouses and the mediator interact in order to realize each party’s high-end goals or outcomes. Process includes the sequence of the mediation, as well as the interventions and techniques employed. A mediator who reframes an issue, who speaks back as to what he/she heard, or who sends the parties to “legal coaches” to talk about what a judge might do is working with the process.

In my practice, for example, I see my role as (1) guiding the clients through the divorce issues relevant to their particular family and financial circumstances, (2) identifying their basic interests and needs in order to facilitate their agreement on those issues, and (3) preparing a memorandum reflecting the spirit and substance of their agreement at the conclusion of mediation.

There are other basic differences in early stage facilitative mediation as I experience it. Although lawyers are often in the background advising each spouse on legal questions, mediations are typically conducted without lawyers present. Spouses are in the same room, sitting side by side, as they discuss and decide the details of their parenting plan and property settlement.

Facilitative mediators don’t evaluate their clients’ respective positions. Far from it, they ask their clients to focus on their key interests and refrain from taking positions. The goal is a fair and durable agreement – one that each person can look back on down the road and feel good about. Not in the sense that it was a “home run”; rather, that there was a fundamental fairness about the process and result that allows these former spouses to get on with their lives.