Evaluative Versus Facilitative Mediation: A Discussion

Abstract

DEAN ALFINI: We are celebrating the tenth anniversary of the Florida Dispute Resolution Center. The Center was founded in 1986, and soon thereafter, in 1987, the statute was passed that gave to every judge in the state the power to send any case to mediation or arbitration.1 In 1988, a set of rules were promulgated by the supreme court that essentially operationalized the statute.2 Since that time, literally tens of thousands of cases have been mediated here in the State of Florida in the court-sponsored programs at the circuit level, the family level and in the county courts. Tens of thousands of cases! They represent a significant body of experience. That body of experience is now causing a bit of trauma. People are making judgments about what works and what doesn’t work, and sometimes these judgments about what works and what doesn’t work collide with traditional notions of what’s “good mediation,” how mediators should behave, and how mediators should perform. This collision between the pragmatic and the ideal, or traditional, to some extent is being crystallized in the debate over facilitative versus evaluative mediation. May a mediator offer an evaluation of the case to the parties? Those who argue in favor of facilitative mediation say, “Absolutely no. Never.” Never should a mediator evaluate a case. Those who argue in favor of a more pragmatic approach to mediation say, “Well, it isn’t the way I would start out, but if the parties want it, certainly I’ll offer an evaluation, or even sometimes I’ll offer it on my own if I think it’s warranted. I generally wait for awhile, though.” This debate is raging in the law reviews and the literature on dispute resolution.3 We have with us today a very able panel to address