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The Pitfalls Of Evaluative Mediation

From the Blog of Phyllis G. Pollack.

On Friday, February 5, 2010, I helped a colleague who teaches a mediation clinic in a local school by coaching some of her students conducting a mock mediation. That is, I observed the students conduct their first mediation (using a fact pattern given out by the professor) and provided suggestions.

The particular fact pattern was, in essence, a collection action. A quick reading of it showed that Plaintiff did not have a very good case and would probably lose in small claims court, were the matter actually tried. The issue for the student mediator was how evaluative, if at all, should she be in her discussions with Plaintiff. Should she say anything to Plaintiff to the effect that she faced an uphill battle and if so, how mildly or strongly should such a “ suggestion” be worded.

Each of the student mediators approached the task differently, but, they were all evaluative–telling Plaintiff she did not have much of a case and would lose. They each just conveyed this sentiment differently.

In driving back to my office, I reflected on this in light of a recent mediation. There, the parties reached an agreement that involved the participation of a third party who was neither a party to the lawsuit nor to the mediation. Implementing the settlement was not going smoothly as the third party was not responding in the manner envisioned by the parties. So, much communication was occurring in trying to keep the settlement on track. More and more, our discussions focused on the cultural differences of the parties and the third party. Plaintiff and the third party were Asian while the defendant was “American”, (that is, Anglo-Saxon.)

Suddenly, I had an epiphany or ‘ah-hah” moment. Both the students that day as well as me, must take into the account the cultural background of the participants in deciding whether to be evaluative. Why? Let me explain. In my mediation, the Plaintiff was from a country that followed Dutch law or the civil code tradition in which the judge also investigates, asks questions and prosecutes. That judge has a lot more power and control over the matter than do our American judges under our adversarial system. The system used in this Asian country is not at all adversarial but rather, inquisitorial.

In the later stages of my mediation and with the blessing of her counsel, I became evaluative with the plaintiff advising plaintiff that because her english was very difficult to understand, she might well lose the attention of the jury and thus lose her case. I noted that using an interpreter may also cause her to lose because again, she may well lose the jury’s attention.

Subsequent to the mediation, plaintiff’s attorney advised me that after my discussion with plaintiff, plaintiff used her mobile phone and told the other party that “she had lost” her case. At the time, the attorney did not think much of it, but suddenly, amid all of our discussions about cultural differences, he had his own epiphany or “ah-hah” moment as well, and realizing that given plaintiff’s cultural background, (and even though I told plaintiff that I was neither an arbitrator nor judge and was not deciding anything), she cloaked me with authority, Thus, when I warned her that her inability to speak English could adversely impact her case, she understand that to mean that I was deciding her case and telling her that she had “lost”!

I have taken many training classes focusing on cultural differences. But, the discussions have always been in the abstract. This mediation brought it home; be careful about the cultural differences. What I say as a mediator with the intent that it be received one way may well be taken completely differently by the listener in light of her cultural background. While I wanted my “evaluation” to be taken with a grain of salt, this plaintiff, because of her culture and her country’s legal system, took it as “gospel.”

….. Just something to think about.


Phyllis Pollack

Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as… MORE >

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