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

Evaluative mediation

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:

Quality of evidence and research gap

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.

Table of Contents

5. Recommendations on SHARING
5.2 Facilitative mediation
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