Evaluative and Directive Mediation: All Mediators Give Advice--Part 1 of 2

Evaluative and Directive Mediation: All Mediators Give Advice--Part 1 of 2

John Wade October 2011

Working description
"Evaluative", "directive", "advisory" or "challenge" mediation is a common type of mediation. Like all forms of mediation, health care, engineering, lawyering and management, it has many subtypes and variables.
A working description of evaluative mediation is a dispute resolution process whereby a person with some expertise in a particular field meets with two or more disputants, encourages them to negotiate within and across their respective teams; and collects alleged facts, evidence and arguments, and gives information, opinion and advice which varies in tone, timing and content.
The expertise of the advisory mediator may be for example, in farming, building, child development, "law" generally, or some specialisation of "law".
Eventually, the different words, now used interchangeably, such as "directive", "evaluative", "advisory", and "challenge" ( there are probably more), may acquire more precise meanings and create names for various sub categories of evaluative mediation. In this paper, the words are used interchangeably.
In many countries, including Canada, USA, UK, and Australia, there are flourishing pockets of advisory mediation, particularly in routine negotiations between personal injury claimants and insurers.
Human beings are accustomed to employ alleged experts to give information, opinion and advice—doctors, plumbers, financial advisers, mechanics, etc—so it is not surprising that mediators are also employed to give various forms of advice. Many conflict resolution processes obviously have "substantive opinions" introduced  other than from a mediator.  Sometimes this results in "duelling experts" such as engineers, lawyers, valuers, doctors or anthropologists. An evaluative mediator provides two roles for the price of one—as a process facilitator of the meeting, and as (another) substantive advice-giver.
Variety of Information, Opinion and Advice
The information, opinion and advice given by many mediators ( like other professional helpers), whether offered in privacy, or in joint meetings, varies in timing, tone and content from the subtle to the very direct.
For example:
*"I'm confused"
* "Have I understood you correctly—"
* "How will you prove that --?"
*" What if your boss/judge/doctor disagrees with that statement?"
* "Which of the experts is wrong? At least one of them must be."
* "Am I correct—there are three arguments each way?"
* "That is a novel argument."
* "Your employer will have to give evidence"
* "Can I tell you what is the normal pattern in these kinds of disputes?"
* " Do you know the current statistics on how these disputes turn out?"
* " I could be wrong, but I can forsee four problems for your busines if this dispute continues."
* "There are 3 popular methods at present to value businesses."
* " On my maths, your costs exceed the probable returns"
* "Please rank what you think are your two best arguments."
* " As an outsider, only one of your arguments has impressed me so far."
* "What are the precedents for that kind of outcome."
* " Why would a judge make that kind of order?"
* " I think that you are very optimistic."
* " That suggestion does not have a snowball's chance in hell—" etc
Factors in the the Fog of Debate between Various Mediation "Types"
The flourishing pockets of evaluative mediation have led to ongoing emotional debates –often more heat than light. This is fog is dense at least because—

1. There is an understandable tendency for commentators to compare a single type of evaluative mediation with a single type of facilitative or therapeutic mediation. Obviously, this need for stereotype misses the reality that each type has many shifting and subtle hybrids which reflect aspects of the others.
2. The best of one form of mediation service is often compared to the worst of other "types"( "Wonder" versus "horror" stories; surgery versus chemotherapy stories).
3. Unemployed mediators of different "schools" are predictably disappointed by gossip that other "schools" appear to be more employed.
4. Mediation trainers tend to unjustifiably promote their own product as the "best". The majority of trainers teach facilitative or therapeutic models of mediation; and overrate their own usefulness, and discourage use of evaluative mediation types.
5. Mediation students who have invested time and money into training, tend to faithfully insist, based on their own sunk costs, that their learned model and guru are "best".
6. All  mediators give information and advice, despite protestations to the contrary, and have not studied the many gradations of tone, timing and content of "advice" which they are giving.
7. It has been a convenient historic fiction for a young profession to suggest that mediators do not give "advice"---rather only information, or advice on "process". This fiction has assisted a young and developing profession to survive the fear campaigns and turf protection of older monopolies, such as ( especially) lawyers,  ("Do not give legal advice, or else---"—whatever that under- analysed concept means?); psychologists ( "Do not give advice about the emotional realm"--ouch);  financial advisers ("Do not give advice or information about financial or tax topics"—aargh);  valuers ( "Do not give information or advice on how to value anything"---woops);  cultural experts ( "Do not stumble into the multiple errors of advice giving across cultures"—oh no);  childdevelopment experts ( "Do not give advice about what is helpful for children"—but, but--); life coaches("Do not negligently reduce life conflicts to legal categories when conflict is about the meaning of life"—would I do that?); etc.

These truths, pontifications, bluffs, threats, lies and turf wars for the last 30 years have not led to a single successful lawsuit on the planet against any brand of mediator for once only or systematic boundary crossing into other alleged professional monopolies.
Arguably, the vast majority of judges are reluctant to scare mediators when these people are relieving the courts of the majority of the difficult cases languishing in their lists; when many mediators are providing dispute resolution services for the poor and middle class when no one else is doing so; judges are probably not interested in the flood of satellite disputes about what was or was not said by mediators at mediation meetings, and when this crossed some vague professional boundary, and whether any comments were the "cause" of behaviour and loss. No doubt there will be an occasional crucifixion of an evaluative mediator or two in the next few decades where the boundary crossing is blatant, and disaster follows.

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Biography

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John Wade is currently a Professor of Law at Bond University. John is a nationally and internationally acclaimed expert in dispute resolution, legal education and in family law. For the last 34 years he has taught at two Australian, three Canadian and four US Law Schools. He has led over 200 courses in mediation and negotiation in UK, Hong Kong, NZ, USA and Australia. He won the inaugural awards for teaching excellence at both Sydney University and Bond University. John was one of the founding editors of the Legal Education Review and pioneered the postgraduate teaching of educational methods and theory to new law teachers.
He has published over 90 books and refereed journal articles, as well as conducting an ongoing clinical practice in mediation and in family law. He is a regular consultant to state and federal law reform bodies. John is acknowledged world-wide for teaching with enthusiasm, clinical expertise and innovative interactive methods. He has had a unique and long career of expertise in legal theory, clinical practice and teaching.

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Website: www.bond.edu.au/law/centres

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