“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.
* “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—
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.
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.
(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.
This paper was commissioned by Professor Masahiro Matsuura, Department of Public Policy, University of Tokyo in conjunction with a Joint Fact Finding conference held on February 15, 2011 in Tokyo.The...By Peter Adler