Facilitate or Evaluate?

Like many other mediators who qualified a long time ago (in my case 2001) I was taught that a mediator should never offer an opinion, no matter how informal, on the merits of the case - to do so would undermine my independence in the eyes of the parties.

My own experience in acting for claimants and defendants at mediation and indeed acting as mediator is that, as the years have gone by, there has been more desire by the parties to have the mediator’s view on one or more issues in the case. Such views are now increasingly being offered by mediators but unless it is abundantly clear to the parties and their advisers that the mediator is now, at their request, wearing a different hat and subject to different rules, this is potentially fraught with difficulties.

However, if the mediator is trained at evaluative as well as facilitative mediation and the option to move from facilitative to evaluative mediation is discussed with the parties and embodied in the mediation agreement beforehand, such difficulties and risks fall away.

The parties will have agreed that the mediation should take a different turn so there is little or no risk of a perception of a lack of independence. Moreover, the mediator in the mediation agreement will have clearly set out the rules which apply in this evaluative mode and can ensure that he or she is not sued for any non-binding evaluation given.

In mediations where a difference of opinion on a fundamental legal question is blocking the road to settlement, an informal evaluation from the mediator can lift the deadlock and it may well then be possible to reach a settlement.

Rick Munro

Mediator (Accredited by CEDR, ADR Group and CADR)

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