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Evaluative and Directive Mediation: All Mediators Give Advice--Part 1 of 2

by John Wade
October 2011 John Wade

Working description

“Evaluative”, “directive”, “advisory” or “challenge” mediation is a common type of mediation. Like all forms of mediation, health care, engineering, lawyering and management, it has many subtypes and variables.

A working description of evaluative mediation is a dispute resolution process whereby a person with some expertise in a particular field meets with two or more disputants, encourages them to negotiate within and across their respective teams; and collects alleged facts, evidence and arguments, and gives information, opinion and advice which varies in tone, timing and content.

The expertise of the advisory mediator may be for example, in farming, building, child development, “law” generally, or some specialisation of “law”.

Eventually, the different words, now used interchangeably, such as “directive”, “evaluative”, “advisory”, and “challenge” ( there are probably more), may acquire more precise meanings and create names for various sub categories of evaluative mediation. In this paper, the words are used interchangeably.

In many countries, including Canada, USA, UK, and Australia, there are flourishing pockets of advisory mediation, particularly in routine negotiations between personal injury claimants and insurers.

Human beings are accustomed to employ alleged experts to give information, opinion and advice—doctors, plumbers, financial advisers, mechanics, etc—so it is not surprising that mediators are also employed to give various forms of advice. Many conflict resolution processes obviously have “substantive opinions” introduced  other than from a mediator.  Sometimes this results in “duelling experts” such as engineers, lawyers, valuers, doctors or anthropologists. An evaluative mediator provides two roles for the price of one—as a process facilitator of the meeting, and as (another) substantive advice-giver.

Variety of Information, Opinion and Advice

The information, opinion and advice given by many mediators ( like other professional helpers), whether offered in privacy, or in joint meetings, varies in timing, tone and content from the subtle to the very direct.

For example:

*“I’m confused”

* “Have I understood you correctly—“

* “How will you prove that --?”

*” What if your boss/judge/doctor disagrees with that statement?”

* “Which of the experts is wrong? At least one of them must be.”

* “Am I correct—there are three arguments each way?”

* “That is a novel argument.”

* “Your employer will have to give evidence”

* “Can I tell you what is the normal pattern in these kinds of disputes?”

* “ Do you know the current statistics on how these disputes turn out?”

* “ I could be wrong, but I can forsee four problems for your busines if this dispute continues.”

* “There are 3 popular methods at present to value businesses.”

* “ On my maths, your costs exceed the probable returns”

* “Please rank what you think are your two best arguments.”

* “ As an outsider, only one of your arguments has impressed me so far.”

* “What are the precedents for that kind of outcome.”

* “ Why would a judge make that kind of order?”

* “ I think that you are very optimistic.”

* “ That suggestion does not have a snowball’s chance in hell—“ etc

Factors in the the Fog of Debate between Various Mediation “Types

The flourishing pockets of evaluative mediation have led to ongoing emotional debates –often more heat than light. This is fog is dense at least because—

  1. There is an understandable tendency for commentators to compare a single type of evaluative mediation with a single type of facilitative or therapeutic mediation. Obviously, this need for stereotype misses the reality that each type has many shifting and subtle hybrids which reflect aspects of the others.
  2. The best of one form of mediation service is often compared to the worst of other “types”( “Wonder” versus “horror” stories; surgery versus chemotherapy stories).
  3. Unemployed mediators of different “schools” are predictably disappointed by gossip that other “schools” appear to be more employed.
  4. Mediation trainers tend to unjustifiably promote their own product as the “best”. The majority of trainers teach facilitative or therapeutic models of mediation; and overrate their own usefulness, and discourage use of evaluative mediation types.
  5. Mediation students who have invested time and money into training, tend to faithfully insist, based on their own sunk costs, that their learned model and guru are “best”.
  6. All  mediators give information and advice, despite protestations to the contrary, and have not studied the many gradations of tone, timing and content of “advice” which they are giving.
  7. It has been a convenient historic fiction for a young profession to suggest that mediators do not give “advice”---rather only information, or advice on “process”. This fiction has assisted a young and developing profession to survive the fear campaigns and turf protection of older monopolies, such as ( especially) lawyers,  (“Do not give legal advice, or else---“—whatever that under- analysed concept means?); psychologists ( “Do not give advice about the emotional realm”--ouch);  financial advisers (“Do not give advice or information about financial or tax topics”—aargh);  valuers ( “Do not give information or advice on how to value anything”---woops);  cultural experts ( “Do not stumble into the multiple errors of advice giving across cultures”—oh no);  child development experts ( “Do not give advice about what is helpful for children”—but, but--); life coaches (“Do not negligently reduce life conflicts to legal categories when conflict is about the meaning of life”—would I do that?); etc.

These truths, pontifications, bluffs, threats, lies and turf wars for the last 30 years have not led to a single successful lawsuit on the planet against any brand of mediator for once only or systematic boundary crossing into other alleged professional monopolies.

Arguably, the vast majority of judges are reluctant to scare mediators when these people are relieving the courts of the majority of the difficult cases languishing in their lists; when many mediators are providing dispute resolution services for the poor and middle class when no one else is doing so; judges are probably not interested in the flood of satellite disputes about what was or was not said by mediators at mediation meetings, and when this crossed some vague professional boundary, and whether any comments were the “cause” of behaviour and loss. No doubt there will be an occasional crucifixion of an evaluative mediator or two in the next few decades where the boundary crossing is blatant, and disaster follows.

  1. Funding agencies tend not to care about turf protection and labels between professional groups. They just want a high rate of settlement for low dollar expenditure.
  2. The poor and middle class in western societies can rarely afford the services of courts, lawyers, or lawyer-mediators. They will continue to seek and receive “all kinds of advice”from cheap mediators ( or anyone else who is free or cheap), who are trying to provide some kind of service, as compared to none. Some lawyers and judges may complain informally about “advice-giving”, but they have neither the will or resources to provide low or no cost negotiation, mediation or “legal” services to the poor and middle class.
  3. National accreditation authorities, (influenced by facilitative mediation trainers—including the writer), have predictably favoured accreditation in one model of mediation---namely a broad or narrow version of facilitative mediation. It is a challenge to examine and accredit the multiple different substantive specialties used by advice giving mediators—eg construction, child development, negligence, change management in organisations etc.
  4. Lawyers are obviously more comfortable with lawyer-mediators, who are in turn more comfortable with traditional shuttle and advice- giving negotiations. This pattern of comfort gives evaluative-lawyer mediators market dominance in any conflicts which have been converted into “legal” catogories. Of course, these are statistically a tiny minority of social conflicts.
  5. Judges are always managing conflicts which have been squeezed into legal categories, and are usually comfortable when references are made to mediators with an evaluative “legal” perspective---preferably respected legal colleagues who will cover all “legal” loopholes, and therefore minimise chances of return to the judicial list of “problems-to-be-solved”.
  6. The strengths and weaknesses of each competent model of mediation service are often not discussed, written about or researched in a balanced manner ( compare again the health professions).
  7. Some experienced mediation services, reluctantly and against their own ideological convictions, have decided to change their historical commitment to facilitative mediation models. Why?  These services have concluded by years of anecdote and research that faciltative mediation requires clients to have certain problem solving skills, which are not possessed by the majority of the population.

Accordingly, these services now direct certain clients to

 an alternative advice giving model for those clients diagnosed as uneducated, or violent, or mentally ill, or alcoholic, or drug addicted—perhaps at least 50% of the population in industrialised modern societies?

Such dual service models have not fitted comfortably with their historic commitment to brainstorming, problem-solving and facilitative mediation.

  1. Even though evaluative mediators give advice on facts, evidence, “rules” and conventions in their own area of expertise, they inevitably
(as do other professional advisers), wander or leap into giving advice concerning topics about which they have no professional qualification---such as publicity, loss of business, deterioration of health, value of money, behaviour of officials, what is normal---especially when clients reach the “last gap” in negotiation and decision-making.

The above factors suggest that the debates about “types” of mediation and negotiation will continue—How many? What boundaries? Who provides? When?

Such debates have arguably matured in other professions such as health care, where tensions, competition, limited funding and research exist, sometimes helpfully, between surgical, chemical, psychological, exercise and do-nothing interventions.

The writer suggests that as these ongoing similar mediation debates are unpackaged, the debates become more helpful, rather than fog and noise.

Biography


John Wade is an Emeritus Professor of Law at Bond University and a practicing lawyer. John is a nationally and internationally acclaimed expert in dispute resolution, legal education and family law. For the last 40 years he has taught at two Australian, three Canadian, one French and four US law schools. He has led over 250 courses in mediation and negotiation for law firms, government and industry in UK, Hong Kong, NZ, USA, Indonesia and Australia. John was one of the founding editors of the Legal Education Review and pioneered the postgraduate teaching of educational methods and theory to new law teachers. He has published over 100 books and refereed journal articles.

Mediation practice.  Since 1987, John has mediated hundreds of disputes in areas of family property, organisational, succession, insurance, and child disputes. He has developed a specialty in family property conflicts. In 2011, John was named by the International Bar Association as one of the top nine commercial mediators in Australia. In 2013, John moved to Vancouver, Canada with his family, and continues his mediation practice and teaching there.

John now lives in Vancouver, Canada. Contact: jwade@bond.edu.au



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