There is much debate among legal professionals and indeed mediators as to whether a good mediator should be facilitative – that is someone who merely facilitates negotiations between the parties without imposing any personal opinions on the negotiations, or evaluative – that is someone who provides an opinion to the parties and/or who encourages the parties towards his or her view of an appropriate resolution.
The general consensus among experienced mediators and legal representatives is that a good mediator is always facilitative, but while he or she may use evaluative tools, it is seldom helpful to go too far down the road of evaluation.
In the early stages of a mediation, parties come with their own assessment of the strengths and weaknesses of the case and should be allowed and encouraged to negotiate from their perspective of the case. A facilitative mediator allows this process to take place and uses the position of intermediary to allow the negotiation process to flow smoothly.
On the other hand, parties sometimes want the input of the mediator to assist their evaluation of the case and sometimes may need such input to get beyond a negotiation impasse. A good mediator should always be very careful about disclosing or expressing his or her opinions because he or she never knows everything the parties know and thus may make a misjudgement. Once expressed, an opinion cannot be recalled without loss of credibility or neutrality.
Gaining the trust and confidence of the parties through empathy is the most important mediator quality for success, and those who have that ability often also demonstrate that they are persistent, creative, knowledgeable, well-prepared and, when necessary, willing to be evaluative and persuasive in promoting concessions towards settlement.
