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The Differing Ideologies of Evaluative and Facilitative Mediation

The Differing Ideologies of Evaluative and Facilitative Mediation

How do you view the choice between evaluative and facilitative mediation?



Full Transcript

Let me tell you how I look at this. I tend to look at so many things in life as lying along a continuum. I see choice that way and I think if nothing else, we mediators always have choice. So if somebody does something in a negotiation, let’s just use a monetary negotiation for the moment and the parties are $150,000 or pounds or Euros apart, I’m showing my age, if they’re $150,000 apart and one of them moves $1,000, that’s a small, incremental move, and in that moment, the mediator has a choice about how to respond to that move. On a very facilitative approach, a mediator might say, ‘Well, then, okay, so help me understand what message you want them to get from this $1,000 move and let’s talk about what we expect back in return from them and is that the response that we want?’ It could be very facilitative with how we handle that.


While the purists would say, and I don’t mean to name call, I’m just trying to divide people so we can talk about them almost in the extreme sense. The purists might say, ‘Well, the mediator is thinking, ‘What a joke,” but that’s not our job. Our job is to help facilitate that negotiation and if they want to move $1,000, that’s their prerogative and let’s figure out what their underlying interest is. All of those things are true and most of us are saying, ‘Are you kidding me?’ So being able to walk, to respond differently to that, a softer approach than, ‘Are you kidding me?’ might be, ‘Well, that’s one way to do it. That’s one way to look at, that’s one option you have.’ That sort of says, ‘Let’s look at some others.’


But the heavy metal option is, ‘Yeah, right. You think I’m really going to walk in there and take $1,000 move? They would shoot me when I walked in. You’re trying to get me killed, aren’t you?’ and have that kind of approach with them that basically says, ‘No way is that going to be the move you make. I hear that you’re frustrated but let’s figure out what move you’re going to make that’s actually going to get this resolved for you’. In a way that’s a little heavier-handed, much more direct and blunt and in some cases, more effective than the very facilitative model in that moment.


I don’t think of mediators as labelling themselves as ‘heavy metal’. I think of mediators as using a heavy metal toolset as part of their palette of options. Every painting needs some black just like it needs some white.

About the mediator

Lee Jay Berman Profile Pic

Lee Jay began as a full-time mediator and trainer over 18 years ago, and has successfully mediated over 1,700 matters. He is a national panelist with the American Arbitration Association, a Distinguished Fellow with the International Academy of Mediators, internationally certified by the IMI, and a Dispute Resolution Expert with the United Nations Development Programme. In 2008, Lee Jay founded the American Institute of Mediation offering “W... View Mediator