Recommendations
on empoyment
disputes

5.2 FACILITATIVE MEDIATION

Guideline for employment problems / SHARING: 5.2 Facilitative mediation

Interventions and evidence explained

Most plausible interventions explained

In the first literature search carried out, two interventions stood out as most plausible interventions for exploring possible solutions that meet needs and interests of both parties

Facilitative mediation
Evaluative mediation

Organisational dispute resolution mechanisms are of various types: mediation, arbitration, early neutral evaluation and ombuds programme. Organisations in the UK (ACAS), US (REDRESS, EEOOC), Netherlands (court-connected mediation) are increasingly using mediation programmes. These programmes are based on three techniques that are widely used in mediation and in resolution of employment disputes: facilitative mediation, evaluative mediation and transformative mediation.Transformative mediation is a therapeutic mediation technique that came after evaluative and facilitative mediation techniques. It was developed by Rober A. Baruch Bush and Joseph P. Folger in 1994. It is based on the principles of facilitative mediation. In this recommendation, we will compare facilitative and evaluative mediation as they have a starkly different way of resolving conflicts and understanding the contrasts will be useful for practitioners.

Facilitative mediation

The terms "facilitative" and "evaluative" mediation derive from the work of Leonard Riskin. They represent opposite ends of one dimension of a grid intended to illustrate some variations in mediation practice (Lande 2000, p.322).
“Riskin described the facilitative mediator, who focuses on clarifying and enhancing communication between the parties and helping them decide what to do. The mediator generally will listen to opening statements and may conduct caucuses, but the focus of the process is not on the legal merits of the dispute, so much as on the parties' underlying needs and how those needs might be met in an interest-based settlement. The mediator generally will avoid evaluating the case, but may engage in reality-testing to help the parties achieve a more objective sense of their alternatives to a negotiated settlement” (Bingham et al. 2009, p.12).
“The facilitative mediator does not give advice, legal or otherwise; does not provide opinions on the relative value of a parties case or individual issues within the matter; and does not make predictions on the possible outcome of the action should the parties fail to reach agreement and proceed to litigation or arbitration” (Hughes 1998). “Facilitative mediation is based upon three fundamental assumptions: first, the disputants are reasonably intelligent and potentially able to work with each other if placed in a neutral and safe environment. Second, the parties, after being properly counseled by their attorneys are, capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. And, third, the clients can develop better solutions than any mediator might create. Facilitative mediation calls upon the parties to create options, explore alternatives, brainstorm possibilities and think laterally to fashion a resolution to the dispute. In facilitative mediation, the emphasis is on self-determination” (Hughes 1998).

Evaluative mediation

“The evaluative mediator focuses on helping the parties understand the strengths and weaknesses of their case by providing assessment, prediction, and direction. Evaluative mediators generally ask the parties to make formal opening statements presenting their case, and then conduct one or more caucuses to meet privately with disputants. The mediator focuses on collecting facts, identifying issues, and analyzing the parties' legal arguments to develop a sense of the case's economic value. In other words, the mediator evaluates who is likely to win and how much the winning party will probably recover. In order to press the parties to settle, the mediator will judiciously share this evaluation with each side at strategic moments” (Bingham et al 2009, p.39).
“The mediator may propose fair and workable resolutions to one or more issues, press the parties to accept a particular resolution, and state opinions, including opinions on the likely outcome. This model also tends to involve a more directive mediator, one who will not hesitate to 'arm-twist' the parties to achieve settlement. It is seen as more adversarial than facilitative mediation” (Hughes 1998).

Selected interventions for comparison (defined as a PICO question)

For shaping solutions during a conflict between employer and employees, is evaluative mediation or facilitative mediation more effective on their well-being?

Search strategy

The databases used are: HeinOnline

Key words used in the search strategy are: employment dispute, mediation, facilitative mediation, evaluative mediation.

Assessment and grading of evidence

The main sources of evidence used for this particular subject are:

Boon, A., Urwin, P., & Karuk, V. (2011). What difference does it make? Facilitative judicial mediation of discrimination cases in employment tribunals. Industrial Law Journal, 40(1), 45-81.
Alexander, N. (2008). The mediation metamodel: Understanding practice. Conflict Resolution Quarterly, 26(1), 97-123.
Berggren, Kristina E. (2006). "Do Formal Mediation Programs Work in the Settlement of Employee-Employer Disputes?" Seminar Research Paper Series. Paper 6.
Lande, J. (2000). Toward more sophisticated mediation theory. Journal of Dispute Resolution, 2000(2), 321-334.
Waldman, E. A. (1998). The evaluative-facilitative debate in mediation: Applying the lens of therapeutic jurisprudence. Marquette Law Review, 82(1), 155-170.
Scott H. Hughes. (1998). Facilitative Mediation or Evaluative Mediation: May Your Choice Be a Wise One. 59 The Alabama Lawyer, 246.
Love, L. P. (1997). The top ten reasons why mediators should not evaluate. Florida State University Law Review, 24(4), 937-948.
Stulberg, J. B. (1997). Facilitative versus evaluative mediator orientations: Piercing the grid lock. Florida State University Law Review, 24(4), 985-1006.

Quality of evidence and research gap

The article by Waldman (1998) frames the debate between supporters of evaluative and facilitative mediation through the lens of therapeutic jurisprudence. The author provides a detailed analysis on the kind of therapeutic benefits each mediation style offers. Although convincing, this analysis is theoretical and is based on experts’ opinion. The author does not refer to empirical evidence to support the arguments made. The lack of empirical research on the advantages and disadvantages of facilitative and evaluative mediation for disputants has also been acknowledged in the article. Hence, we grade this paper as low.
The paper by Lande (2000) reasons that the debate between evaluative and facilitative techniques has led to a better understanding of the benefits and drawbacks of each and has stimulated a discussion on the appropriate use of each technique in different contexts. The arguments made in the paper are well-thought and convincing but largely rely on literature on expert opinion. Reference to empirical research has been made only once. So we grade the paper as low.
Berggren (2006) presents evidence from a case study on othe Equal Employment Opportunity Commission (EEOC)- a federal agency established to enforce civil rights against workplace discrimination in the US. The EEOC uses facilitative techniques to mediate employment disputes. The author presents evidence from various studies conducted on the effectiveness of the EEOC in resolving employee disputes. Therefore, this paper can be regarded as high-quality evidence.
Hughes (1998) analyses literature on evaluative and facilitative mediation to infer which mediation style should be used for a client’s dispute. This analysis is done using theoretical reasoning. There is no reference to empirical research in the paper. So the paper is graded as low.
Boon, Urwin and Karuk (2011) present the findings of an evaluation of a facilitative judicial mediation, piloted by the Employment Tribunal Service in the UK. It analyses qualitative evidence on satisfaction of clients with the process and outcome of the mediation as well as reports drafted by judicial mediators. Although the sample size of this study was not large, it is still significant. The data includes a satisfaction survey of those expressing interest in judicial mediation, with thirty five claimants and fifty one employers who had experienced judicial mediation, and forty five claimants and thirty seven employers who had not. Also, there is data on 98 mediation reports completed by judicial mediators. The paper presents both perspectives, that of clients and mediators. Since the sample size of this study is comparable to a small empirical study, we grade the quality of this paper as low.
Love (1997) presents arguments against using evaluative mediation. The paper largely relies on conceptual and theoretical literature to make its case. Empirical research is not used to back up the arguments. Due to the absence of any reference to empirical literature, we grade the quality of this paper as low.

A large amount of literature on both these interventions (evaluative and facilitative mediation) is based on conceptual research, expert opinions and a few small empirical studies. Large empirical studies or meta analyses are lacking. According to the Actionable Recommendations document and GRADE methodology, the overall strength of evidence right now is low. The fact that there is not a lot of empirical research, our understanding of the desirable and undesirable outcomes of both interventions is limited.

Comparing the two interventions

Desirable outcomes of the interventions

Evaluative mediation	Facilitative mediation
In evaluative mediation, because the mediator actively directs the process, he or she can effectively reduce the domination of one party, if that is the case. ‘Evaluative techniques can provide an antidote to unfairness caused by passive facilitative mediators who permit stronger parties to take advantage of weaker ones’ (Lande 2000, p.326).	Majority of the disputing parties were satisfied with the meditation process used by EEOC. They were willing to use the mediation process again, if a situation arises. One survey conducted through the EEOC found that of parties involved in the process, 96% of employers and 91% of claimants would use the mediation process if it was offered to them again (Berggren 2006).
The mediator gives both parties an assessment of their chances of succeeding in their claims in the court of law. This helps the disputing parties in arriving at a compromise that is in their best interests. “The mediator can help the parties to determine what is fair so that neither leaves the table only to find out later that they got taken. Using the evaluative technique, the mediator can help disputing parties to understand how the law might vindicate their rights further helping them in avoiding an unfair result’’ (Hughes 1998). “Discussing how each disputant’s position accords with existing social and legal norms makes for more informed decision making, and, in the long run, more equitable agreements” (Waldman 1998, p.157).	One of the clients of EEOC’s mediation process is Safeway Inc, a grocery store chain. This client witnessed a reduction in the number of charges filed. “Through mediation, we have had the opportunity to proactively resolve issues and avoid against potential charges in the future. We have seen the number of charges filed with the EEOC against use actually decline. We believe that our participating in mediation and listening to employees’ concerns has contributed to that decline” (Bergrren 2006, p.6).
Evaluative mediation is suitable when the disputing parties want to distribute resources amongst themselves. Evaluative mediation may provide the best fit if money is the sole issue or the bargaining will be purely distributive (dividing the pie) as opposed to integrative (expanding the size of the pie), as in some contract cases or in simple personal injury or property damage cases (Hughes 1998).	Participants in a survey that evaluated the EEOC mediation programme expressed satisfaction with the skills and role of the mediator. A report that examined the mediation techniques used by EEOC found that the disputing parties “.believe that they had a full opportunity to present their views;…express high satisfaction with the role and conduct of the mediators indicating that the mediators understood and helped to clarify their needs, and also assisted them in developing options for resolving dispute” (Bergrren 2006, p.7).
Because evaluative mediation focuses on arriving at a settlement between the disputing parties, it gives them closure which has therapeutic effects on the disputants. Advocates of evaluative mediation also argue that dispute closure has therapeutic effects and thus, to the degree that evaluative mediation helps bring about settlement, it is therapeutic, even if the parties are not the sole captains of the process (Waldman 1998, p.166).	The ACAS in the UK conducted a survey of 25 respondents who used their mediation services. The respondents appreciated the role played by mediators which shows that disputing parties are satisfied with facilitative techniques used by mediators (Saundry et al. 2013, p.3).
	Facilitative mediation has therapeutic benefits for disputing parties because they “have more autonomy and are not subject to coercion by the mediator while settling the dispute”. “When people solve their own problems during mediation, it develops their confidence and feelings of well-being. This develops their ability to to cope with conflictual situations in the future (Waldman 1998, p.164).’
	Supporters of facilitative mediation also argue that this style of mediation helps disputing parties in becoming aware of each others underlying needs. “It therefore expands the consciousness of disputants” (Waldman 1998, p.165).
	The inherent nature of facilitative mediation that requires parties to communicate their needs to each other that reduces the hostilities that traditional litigation brings. “Facilitation provides an opportunity to avoid or reduce adversarial dynamics embodied in traditional litigation and often mirrored in evaluative mediation” (Lande 2000, p.326).
	At times, mediators in the interest of getting parties to settle the dispute put undue pressure on parties. Because facilitative mediation is based on principles of cooperation, disputing parties receive fairer treatment at the hands of mediators. “Facilitative avoids injustice through heavy-handed pressure tactics and questionable evaluations by the mediators” (Lande 2000, p.326).
	When “disputing parties are likely to have a relationship, facilitative mediation works better to help the parties to repair the relationship, work that is crucial to solidify any resolution of the dispute” (Hughes 1998).

Undesirable outcomes of the intervention

Evaluative meditation	Facilitative mediation
Lande (2000) argues that if evaluative mediator sides with the more dominant party in the dispute, it will damage the interests of the weaker party. This is a disadvantage of the allowing evaluative mediators that take a more active role in dispute resolution. “Stempel argues that eclectic mediation that includes mediator evaluation can provide an “antidote” to unfairness caused by passive facilitative mediators who permit stronger parties to take advantage of weaker ones. I think that it is at least as likely that evaluative mediators will side with the stronger party and thus arguably aggravate the distributional problems that Stempel is legitimately concerned about”(Lande 2000, p.326).	Facilitative mediation deprives disputing parties of guidance. “The facilitative model limits judges’ opportunity to express an opinion on the likely success of the case, or its value. This is problematic in Employment Tribunals, which were established with the intention of excluding lawyers and do not indemnify successful parties for the cost of legal advice” (Boon, Karuk, Urwin 2011, p.6).
“The primary criticism of evaluative mediation is the disputing parties’ loss of self determination. Although the parties always retain the ultimate authority to settle or not, critics assert that the ability to fashion a resolution based upon their own needs and interests may be compromised by a natural tendency to rely on the ideas, options, opinions and predictions from the mediator who is a person with expertise and authority. However, the mediator brings only apparent and not actual expertise. The parties (with the help of their attorneys) have greater expertise than the mediator. They have lived with the dispute for months, if not years, have slept on it, sweated over it, cried about it” (Hughes 1998).	“A purely facilitative role may inhibit some mediators in nurturing participation, leaving respondents feeling better served by the process than claimants” (Boon, Karuk, Urwin 2011, p.21).
Opinions or valuations threaten the mediator’s perceived impartiality. “Any opinion or evaluation will favor one side and disfavor the other. So the injured party will discount the validity of the opinion of the mediator and will label it as the mediator’s bias” (Hughes 1998).	“Employers were more satisfied than claimants with the process. This may be because facilitative mediation is a lightly regulated negotiation which favours parties familiar with the processes” (Boon, Karuk, Urwin 2011, p.22).
If mediators are required to anticipate outcomes of the dispute for the parties, then only lawyers and experts in the field will be eligible to play the role of the mediator. As a result, disputing parties will not benefit from the skills that non-lawyers bring to mediation. “If it is acceptable or customary for mediators to give opinions on likely court outcomes or the merits of particular legal claims or defenses, then only lawyers and substantive experts will be competent to mediate. While this result may be good news for lawyers, the mediator pool would be substantially weakened by the loss of the talents and perspectives of non-lawyers”(Love 1997, p.941).	“Passive facilitative mediators unwittingly permit stronger parties to take advantage of weaker ones” (Lande, 2000 p.326).
If mediators are required to anticipate outcomes of the dispute for the parties, then only lawyers and experts in the field will be eligible to play the role of the mediator. As a result, disputing parties will not benefit from the skills that non-lawyers bring to mediation. “If it is acceptable or customary for mediators to give opinions on likely court outcomes or the merits of particular legal claims or defenses, then only lawyers and substantive experts will be competent to mediate. While this result may be good news for lawyers, the mediator pool would be substantially weakened by the loss of the talents and perspectives of nonlawyers”(Love 1997, p.941).	Facilitative mediation may not help in a long-standing dispute or where there is a clash of personalities. “Where a dispute was long standing and involved personality clashes, mediation was perceived as less effective for resolving the dispute. These types of disputes, usually but not always between employees, were assessed by all parties as likely to be resistant to mediation” (Seargeant 2005, p.22).
“Judges in court-annexed mediation may be criticised for bullying parties towards settlement and for intervening in the style of an arbitrator, thus robbing mediation of its vital, consensual ambience” (Boon, Karuk, Urwin 2011, p.5).
Evaluative mediation is often criticised by scholars for being an ‘oxymoron’ (Love 1996). “They argue that this technique should not be labelled as mediation as it ‘is both conceptually different from, and operationally inconsistent with, the values and goals characteristically ascribed to the mediation process” (Stuhlberg 1997, p.986).

Balance of Outcomes

Mediators frequently mix facilitative and evaluative techniques in individual cases, which is often appropriate and beneficial. Appropriate use of predominantly one approach or the other may vary in part depending on the type of case. The Massachusetts Commission Against Discrimination (MCAD) initiated a mediation programme where the mediators used a mix of facilitaitve and evaluative techniques. An evaluation of the programme showed that 63% of the people who underwent mediation reached a settlement compared with 21% of those who relied on traditional mediation. Additionally, participants expressed a higher degree of satisfaction with the process than the outcomes: 63% of claimants and 77% of supervisors said they would use mediation again while 50% of claimants and 68% of the supervisors were satisfied with the outcomes (Bingham et. al 2009).

However, literature on the desirable and undesirable outcomes indicates that certain mediation techniques are more appropriate in certain cases. In some cases, a facilitative model is more useful. For example,1) when parties are interested in continuing their relationship after the problem is resolved, 2) when both parties have enough power and can negotiate on a level-playing field 3) where there is space for creative and future focused solutions (Alexander 2008, p.11). Evidence indicates that facilitative mediation by EEOC has worked well for employers who are interested in gaining a better understanding of the problems that their employees face (Berggren 2006). Facilitative mediation is not useful when the dispute is long-standing (Seargeant 2005).

Evaluative mediation is more useful where parties are interested in distributive justice where 1) there is an exchange of money or other resources (Hughes 1998), 2) when parties have unrealistic expectations from outcome of the dispute, 3) when clients require an objective opinion of an expert, 4) when parties want a quick resolution to the dispute and 5) when resolving relational aspects of the issue is not important (Alexander 2008).

Recommendation

For shaping solutions during a conflict between employer and employees, both evaluative and facilitative mediation techniques are effective. However, in some contexts, the use of one technique is more useful. For instance, evaluative mediation is more useful when parties have when disputing parties have unrealistic expectations from outcome of the dispute, when clients require an objective opinion of an expert, when parties want a quick resolution to the dispute and when resolving relational aspects of the issue is not important and where there is distribution of material and financial resources.

On the other hand, facilitative mediation is more useful when disputing parties are interested in continuing their relationship, when both parties have equal power in negotiations, where a wide range of solutions are possible and where the employer wants to make a sincere effort in understanding the concerns of the employees.