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Tuesday
Jun182013

Facilitative vs. Evaluative Mediation

In my last post, I discussed the difference between neutral evaluation and facilitative mediation. Since that time, an article on the same subject appeared in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin. One of the authors of the article is Michael Moore, a fellow soccer Dad whom I have known for many years. The article does a great job of defining the two formats. Unlike me, the authors define both of these types of dispute resolution methods as mediation. I believe that only the facilitative method is true mediation. Neutral evaluation is more like non-binding arbitration or a mock trial. It is basically a win-lose scenario, but with non-binding results. Facilitative mediation is a search for a win-win scenario. Nonetheless, the article is an excellent introduction to the uninitiated, as well as a timely reminder to those who may not always remember that there is another way. Too often, litigation attorneys are like the man with a hammer — to them, every problem looks like a nail.  

Mr. Moore and his co-author clearly set forth the differences between what they consider to be the two most prominent types of mediation. What surprises me is that title of the article, “Take a Different View: Explore Mutual Interests with Facilitative Mediation,” seems to imply that the facilitative format is something new and different. Facilitation is different than evaluation, but it is hardly new. While it does seem to be gathering a following here in Wisconsin somewhat more slowly than in other states and parts of the country, I have written about and practiced it for several years now. I have noted that mediation should be considered primary dispute resolution, and that the shuttle diplomacy type of mediation (focusing on positions rather than interests) brings to mind Sam Goldwyn’s declaration that “If you want to send a message, call Western Union.”

Facilitative mediation is not easy to do well. Arbitrators and neutral evaluators can sit back and let the parties develop and deliver their positions. Facilitative mediators must probe to find the parties’ true interests and to develop creative solutions to the problem. But I agree entirely with the Wisconsin Lawyer article authors who conclude that “With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation.” Amen to that.

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