There are times when the last thing we want to hear is an unsolicited opinion. It is no surprise that one of the things we are taught at a young age is to keep our opinions to ourselves. I know that this operates more in the breach than the observance, so it strikes me as appropriate to look at how this impacts our approach to mediation.
I recall a mediation years ago where I very much wanted the mediator’s opinion about my case. For one reason, I was working in a legal area where I had very little experience, certainly much less than the attorney on the other side. It was a maritime case and the plaintiff’s lawyer was a maritime attorney. So, when he would wax eloquent on the vagaries of some ancient mariner case, I wondered whether I had all the tools I needed to protect my client. Therefore, when it came to the mediation, and our mediator also had a deep background in maritime cases, I leaned on him as a sounding board for my defenses. It turns out I had it mostly right and my defenses held water. That gave me great comfort when the case didn’t settle, and we ended up in trial. And even better when the jury returned a defense verdict.
In mediation, parties and counsel often expect more than a quiet room and a patient listener. Instead of a therapist, they want a coach. They want guidance. They want insight. And in many cases, they want pressure. I think the traditional model of a neutral, facilitative mediator has given way to a demand for evaluative or directive mediators who are willing and able to assess risk, challenge attorneys to reevaluate their hard-fought positions, and nudge parties toward resolution. I can’t tell you how many times a lawyer or their client has asked, “What do you think?” But that usually doesn’t happen early in the mediation before I have built up trust.
But this evolution in mediation style raises key questions about the nature of neutrality, the boundaries of the mediator’s role, and the overall effectiveness of each approach. Understanding the benefits and drawbacks of each style is essential for parties choosing a mediator and preparing for a productive mediation process. Don’t walk into mediation without first deciding which approach works for you and letting your mediator know which approach you prefer.
The Neutral Mediator: Pros and Cons of a Therapeutic Approach
The neutral or facilitative mediator operates on the premise that the parties, not the mediator, are best positioned to resolve their dispute. This type of mediator emphasizes process over content. This mediator guides communication, encourages mutual understanding, and helps parties explore their underlying interests. Facilitative mediators avoid giving legal opinions, offering evaluations, or predicting outcomes. They are very much the therapist who teases out of us things we already know but may be unwilling to confront.
There are certain benefits and drawbacks to this approach, and it helps to understand them. First, a neutral approach preserves party autonomy. A facilitative mediation centers the decision-making power with the parties. This can be empowering and often leads to more durable, mutually satisfactory outcomes. But, as with the example I described above, you may want some guidance, either because the matter is complex, or it involves legal issues with which you are not entirely comfortable.
Second, a neutral approach supports relationship repair. In disputes where ongoing relationships matter (e.g., employment, partnership, or family business litigation), a facilitative approach can help rebuild trust and communication between the parties. It’s one thing if the matter is personal injury litigation where ongoing relationships are unlikely. It is something else entirely if your client needs to live or work with the other party the day after the matter resolves. On the other hand, without someone to challenge unrealistic positions, provide reality checks, or suggest solutions, a purely facilitative mediation may result in deadlock and no resolution.
Third, a neutral approach can force the parties to come up with creative solutions. Unconstrained by a mediator’s opinions or monetary suggestions, a facilitative mediation can lead to non-monetary or interest-based solutions that might not emerge if the parties are too dependent on a mediator’s point of view. This approach, however, is better suited for early mediation when time is not of the essence. If the case is nearing trial or another critical deadline, this approach may not serve the parties’ interests, especially if both sides have expended a lot of money to narrow the issues. They may want resolution and are willing to listen to what will get them there.
The Evaluative Mediator: Merits and Limitations of a Coach
Evaluative mediators take a more active role in assessing the merits of the dispute. They offer their views on likely outcomes, legal strengths and weaknesses, and even propose settlement brackets, obviously along with their belief that what they are telling you has weight. This approach is often favored in personal injury, commercial, and insurance-related litigation, where parties are looking for a rational basis to move off entrenched positions.
The first obvious benefit to this approach is it allows the mediator to test a party’s assumptions and point out the risks if settlement is not reached. This is sometimes referred to by mediators as the “BATNA,” or best alternative to a negotiated agreement. This is particularly valuable when a party is overconfident or underinformed. A drawback, however, is that it risks alienating either an attorney who is invested in their position or a client who now wonders whether the mediator is just an advocate for the other side, or worse, whether their lawyer knows what they are doing.
A second benefit to an evaluative mediator is in litigation involving large sums or complex liability issues because parties often need more than a therapist; they need the opinion of a trusted evaluator to know what to do. This evaluation offers a framework for rational compromise. Nonetheless, evaluative mediators may steer the process toward legal arguments and dollar values, potentially missing emotional or relational dynamics that also influence settlement or risk client dissatisfaction. The line between assertive evaluation and coercive pressure can be thin. A good mediator should be discouraged from causing a party to feel rushed or pushed into settlement without fully buying into the resolution.
Hybrid Mediators: Combining the Best of Both Worlds
In my experience, as a litigator or a mediator, rarely is the mediator’s role entirely facilitative or entirely directive. There is a blend. There is a time and a place for both approaches in most mediations. The art is found with a skilled mediator who can move between these approaches depending on the needs of the parties. For example, in a recent mediation, I started the session with the plaintiff telling her I wanted to understand what her goals were for the mediation. Interestingly, money was not the highest on her list. It was “justice.” So, we were able to spend time exploring what that looked like for her as well as the obstacles she faced to achieve that goal. That information may not come out with an entirely directive approach. A mediator’s opinion, offered too early, might squash a plaintiff’s willingness to share certain goals even though a failure to understand them could prevent a case from resolving. And even if it resolves, it can leave one party feeling like they did not get to fully air their thoughts and are dissatisfied with the process.
Waiting until a certain level of trust is built often allows your mediator to present an evaluative opinion when it is most needed. For example, your mediator might recommend against your instruction to carry an extreme offer unless a reasonable rationale is attached. I often ask parties at this time to explore how they think their offer will be perceived in the other room. And this is a perfect opportunity for me as the mediator to let that party know what I think the perception will be. But when I do that, I need to have developed sufficient credibility with the lawyers and the parties so that my opinion is trustworthy.
Finally, a good mediator will never allow the attorney to look bad in front of their client. If there is a difference of opinion between the attorney and the mediator, a discussion may need to take place outside the presence of the client. Alternatively, the mediator can phrase an opinion in a manner that does not foreclose the possibility that the lawyer is correct. Undercutting an attorney in front of their client is almost certain to torpedo the mediation.
Choose the Right Style for Your Case
There is no one-size-fits-all mediation model. The best approach depends on the stage of litigation, the nature of the dispute, and the sophistication of the parties and their attorneys. Some attorneys, like the younger me, need a sounding board and welcome my opinions. Other attorneys don’t care about my opinions at all. They have their arguments and their plan. They make their arguments and execute their plan. Whether the case settles or doesn’t is not their biggest concern. It is up to each of us to decide which approach works best.
When you are selecting a mediator, give some thought to how that person will work with you. Will it be a facilitative or directive approach, or both? Which style will work best for you and your client under the circumstances? Whatever you do, don’t ignore this aspect of working with your selected mediator. Failing to give this consideration could leave you and your client frustrated. Choosing the right mediator and mediation style is certain to increase your chances of success as well as your client’s satisfaction with the process.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. He is licensed to practice in Washington, Oregon, and Alaska and has tried dozens of cases to verdict and mediated hundreds more. A highly experienced commercial mediator, Eric can be reached through his legal assistant, Jasmine Reddy, at 206-287-1775 or jreddy@pregodonnell.com. Further information is available at www.gillettmediation.com or via email at eric@gillettmediation.com or egillett@pregodonnell.com.
