In today’s complex business environment, occasional disputes are inevitable. It’s no secret that protracted disputes can distract management, destroy relationships, and damage the bottom line. Mediation can help resolve business disputes quickly and cost-effectively while minimizing damage to relationships. Selecting the right mediator can significantly increase the likelihood of a successful mediation.
As a young litigator in the late 1980s, I was taught to screen potential mediators by asking whether they were “facilitative” or “evaluative” in their approach. Facilitative mediators focus on the mediation process and the parties’ underlying interests (think “win/win” and “expanding the pie”). Typically, facilitative mediators guide the communications, ask questions, and shuttle the parties’ offers and counter-offers back and forth but do not evaluate the strengths and weaknesses, or dollar value, of the claims. By contrast, evaluative mediators, sometimes called directive mediators, focus more on the substance of the case and the parties’ competing legal rights. Evaluative mediators will provide substantive feedback on the issues and may even offer predictions regarding likely outcomes at trial.
While the “facilitative versus evaluative” question is still a valid one, a deeper dive may be helpful when considering potential mediators. Many mediators will employ both facilitative and evaluative techniques. Since some evaluating by the mediator is probably expected and necessary in most mediations of business disputes – especially typical disputes involving money claims – it may be useful to ask proposed mediators when, how and under what circumstances they typically offer their opinions during the mediation process.