Evaluative Mediation vs Facilitative Mediation: What’s Best for Your Dispute?

Mediation is not a one-size-fits-all process. Every dispute is unique, shaped by the personalities, interests, and stakes involved. As a mediator, I recognize that the best way to resolve conflicts is not by rigidly adhering to one approach but by understanding the dynamics at play and adapting accordingly.

Two primary mediation styles—evaluative mediation and facilitative mediation—offer distinct methods for resolving disputes. However, the real art of mediation lies in knowing when to apply each and, more importantly, how to blend them to achieve the best results.

If you’re a legal professional guiding a client through mediation, understanding the key differences between evaluative and facilitative mediation can help determine the right approach for your case.

In this article:

• What is Evaluative Mediation?
• What is Facilitative Mediation?
• Key Differences: Evaluative vs Facilitative Mediation
• When Should You Choose Each Approach?
• My Approach: A Balanced, Nuanced Method

What is Evaluative Mediation?

Evaluative mediation is structured, analytical, and focused on legal and factual assessments. In this approach, the mediator takes on an active role, assessing the strengths and weaknesses of each party’s position and providing neutral evaluations of the legal merits.

Key Characteristics of Evaluative Mediation:

• The mediator offers opinions on the likely outcome if the case were litigated.
• The process mirrors a settlement conference, helping parties understand the risks of litigation.
• The focus is on legal rights, obligations, and financial implications.
• The mediator may suggest specific settlement terms.

Best suited for:

• Commercial disputes where financial and legal risk analysis is crucial.
• Cases where parties have strong legal positions but need a reality check on litigation risks.
• Time-sensitive disputes where parties need a clear path to settlement.

Read about my expertise in business disputes.

What is Facilitative Mediation?

Facilitative mediation takes a broader, interest-based approach. Rather than focusing solely on legal rights and risks, this method encourages collaborative problem-solving. The mediator does not provide legal opinions but guides parties to reach their own resolution by fostering dialogue and identifying shared interests.

Key Characteristics of Facilitative Mediation:

• The mediator remains neutral and does not offer legal opinions.
• The emphasis is on communication, understanding interests, and developing creative solutions.
• The process is flexible and client-driven, allowing parties to explore settlement options that a court might not impose.

Best suited for:

• Business partnerships and joint venture disputes where relationships need to be preserved.
• Disputes involving miscommunication or trust issues rather than purely legal disagreements.
• Long-term business relationships, where finding common ground is as important as settling the immediate dispute.

Discover the top reasons business relationships fail.

Key Differences: Evaluative vs Facilitative Mediation

Learn about my mediation process.

When Should You Choose Each Approach?

As a legal professional, advising your clients on the right mediation approach depends on the nature of the dispute and the desired outcome.

Choose Evaluative Mediation When:

• The dispute involves complex legal issues or financial risks that require expert assessment.
• Your client is considering litigation and needs a realistic evaluation of their position.
• The parties are at an impasse and need a structured path to settlement.

Choose Facilitative Mediation When:

• The dispute is rooted in miscommunication or relationship breakdown.
• There is value in preserving ongoing business relationships.
• The parties want a more creative, flexible resolution than litigation can offer.

Explore how mediation often beats litigation in resolving business partnership disputes.

My Approach: A Balanced, Nuanced Method

In reality, disputes are rarely resolved by relying on just one mediation style. My approach is not textbook mediation—it is artful, flexible, and designed to bring real value to the process.

With over 25 years in corporate and commercial litigation, I understand the legal complexities behind disputes. But I also recognize that business conflicts are not just about legal positions; they are about people, relationships, and practical solutions.

My mediation style integrates both evaluative and facilitative techniques, depending on the needs of the case. Here’s how I do it:

1. Understanding the Landscape – I thoroughly review each case beforehand, engaging with counsel to understand both the legal and human dynamics at play.
   
2. Adapting the Process – I gauge the parties’ expectations and adapt my approach, whether they need a structured evaluation or a collaborative dialogue.
   
3. Promoting Fair Resolutions – I challenge assumptions, explore possibilities, and facilitate solutions that work for everyone involved.

This hybrid approach allows for nuanced problem-solving that respects both the business and the people behind it.

Learn more about my mediation philosophy.

Choose the Right Mediation Approach for Your Clients

Whether a dispute requires a structured legal assessment or a collaborative problem-solving process, the key is understanding what works best for the situation. Evaluative mediation and facilitative mediation both have their place—but true resolution comes from blending them strategically.

If you are advising clients on business disputes, commercial litigation, or partnership conflicts, I invite you to explore how mediation can offer a smarter, more effective resolution.

Contact me today to discuss the best mediation approach for your case.