Robert Baker

We mediate civil disputes. Research shows that mediation can help you do better than you can unguided by attaining insight into the situation and each other. Only 3% of all civil cases reach trial. Studies show that charging and responding parties are happy with mediation for two reasons: 1) self-determination. 2) they can express their feelings along the way. The first look at what mediators were doing was by Leonard Riskin who developed a Grid. On one axis is the approach of evaluative/facilitative. On the other axis is narrow/broad. We favor facilitative mediation. The Facilitative/Evaluative axis, defines mediators by how they conduct their techniques. A mediator is considered evaluative when he asserts an opinion or judgment as to the outcome.. An evaluative mediator may run the mediation like a judge runs a settlement conference. Such an orientation usurps the parties’ self-determination. The only test of success is whether the mediator convinced the parties to accept an outcome. The mediator may be persuasive, bullying, subtle or belligerent. On the other hand, a facilitative mediator’s role includes: reframing the conversation to avoid defensive reactions, structuring the agenda to maximize the opportunity for collaboration, probing assessments and positions, urging parties to obtain additional resources and information on their own so that they can evaluate their positions. The facilitative mediator assumes that the parties can appreciate their situations better than the mediator. (and they have lawyers to evaluate for them). The facilitative mediator assumes that his principal role is to clarify and enhance communication between the parties in order to assist them in deciding what to do. The facilitative mediator asks questions in an open ended manner, indirectly probes for possible options, and prompts the parties to consider the consequences of not settling. The facilitative mediator elicits the underlying interests of the parties and the broader issues they pose, seeking creative solutions. Scholarship impugns evaluative mediation. Evaluative mediators are poor predictors of value. By announcing value they squash negotiation. There is no systemic check on the conduct of evaluative mediators. They can bully, harass, and err. Party satisfaction is greater with facilitative mediation. That is the goal. I have been AV with Martindale for 30 years and AV-pre-eminent for many. I am a member of the Southern California Mediators Association. See www.bakerjustice.com for my successes