Choose the Right Option: How Facilitative and Evaluative Approaches Can Both Have a Role in Mediation

Thu, Jun 12th, 2025 | by Miles Mediation and Arbitration | Article | Social Share

By Barry Howard

There are various mediation styles or philosophies that parties to litigation encounter when mediating. Generally, they can be categorized as either facilitative or evaluative approaches. Some mediators feel that they should never “evaluate” a case, such as the mediator who says, “a mediator should never express a personal opinion”. A similar approach is the mediator who only carries messages or talking points from one party to another without weighing in the validity of the issues.

On the other hand, I have also encountered mediators who appear to have decided prior to the actual mediation session, usually based on their review of the pre-mediation statements, how the case should be resolved. They then spend the mediation attempting to persuade both sides to accept their view of the outcome.

There are also mediators that will make statements like, “if you were my mother, I would tell you to accept this offer” when getting to the final offers. These types of mediators may be overstepping an “evaluative” approach to mediation.

Somewhere in between all these approaches is the mediator who uses the right amount of guidance or aggressiveness to help the parties reach a settlement without violating his or her principles or the rules of the state governing their conduct. Choosing the appropriate approach is a skill every mediator should master. Here’s a closer look at how to do so.

Adhering to Rules and Standards

Because I practice primarily in Tennessee and am a Tennessee Supreme Court Rule 31 listed mediator, I will refer to the Rules and Standards applicable in Tennessee; many states have similar requirements.

Tennessee Supreme Court Rule 31, Section 10(b)(3) provides that a neutral “must refrain from giving legal advice. However, while a Rule 31 mediator should not offer a firm opinion as to how the court in which a case has been filed will resolve the case, a Rule 31 mediator may point out possible outcomes of the case and may indicate a personal view of the persuasiveness of a particular claim or defense.”

In addition, the Standards of Professional Conduct for attorneys also apply to neutrals. Section 5 (b) states: “A neutral shall not coerce or unfairly influence a party into a settlement agreement and shall not make substantive decisions for any party to an ADR Proceeding.”

The above rules and standards make many mediators less aggressive than they might otherwise be during the mediation. However, it is reasonable to infer that the language in Section 10 also allows for more involvement by the mediator by allowing the neutral to point out possible outcomes and express personal views so long as he or she doesn’t give an opinion on how the court will ultimately rule.

Using Different Approaches at Mediation

When mediating a construction or commercial case, my approach often uses both facilitative and evaluative elements. It is important to be flexible as a mediator, especially at the beginning of every mediation. Being a “one-trick pony” will not make you an effective mediator.

At the start of the session, after the preliminaries are out of the way, you must understand where both sides are in the process and how close they are to resolving the case. This is the facilitative part of the session. Often, the participants can reach settlement using this approach alone. If so, that’s great. But if this approach isn’t working, you’ll have to use other tools or techniques to achieve settlement, including evaluative approaches.

Evaluate witness and expert testimony. One evaluative method is to ask the parties to articulate their claims and defenses and show how they plan to prove each of them. For example, if one of the parties requires an expert, has that expert been identified or disclosed? If so, what is the expert’s testimony, and how well will it hold up to rigorous cross-examination? If both sides have experts, and the mediator has this information she or he may give an opinion as to which one the mediator thinks is likely to be more credible or better received by the trier of fact.

If the liability is fact-based rather than expert-based, the mediator may thoroughly discuss the witnesses, their testimony, and their credibility, offering an opinion as to which side is more likely to be credible to the trier of fact.

Evaluate damages and defenses. Because liability and damages are usually in dispute, a separate analysis of damages is also often helpful. The mediator may ask the plaintiff to explain how he or she is proving damages as a starting point. In cases like construction cases where you usually don’t have the uncertainly of non-economic damages such as pain and suffering or emotional distress, there should be an objective starting point. Again, either expert testimony or sufficient documentation of the expenses should be available.

If documentation is lacking, the mediator can ask the plaintiff about that, and whether the plaintiff understands his or her shortcomings in this area. Is the plaintiff seeking damages that are not allowed by law or other damages, such as attorney’s fees, when there is no statutory or contractual provision for same? If so, how does the plaintiff plan to recover these?

The mediator may also discuss with the defendant how the defendant plans to defend the damages. Is the defense based on lack of documentation by the plaintiff? Does the defendant have his or her own expert to contest the damages, or are there other methods being utilized?

After reviewing all this material, an evaluative mediator can express an opinion to each side about how the mediator thinks the trier of fact is likely to resolve these issues.

Offer a mediator’s proposal. I also occasionally use a mediator’s proposal as one final method when the parties have reached impasse. While I don’t do this routinely, if I have reasonable belief that the parties still want to resolve the case and if both sides affirmatively agree that they want me to provide a mediator’s proposal, I will do so. However, if any of the parties state they do not want a mediator’s proposal, I will not offer one.

Choosing the Right Approach

While every mediation is different, mediators who know how to use both facilitative or evaluative approaches — and when to use them — are better equipped to help the parties reach resolution. Regardless of whether you’re a new mediator or a more seasoned one, understanding the nuances of these different types of strategies will enhance your skills at every mediation.

*Originally published in The Dispute Resolver and reprinted with permission.