This post is by Paul Lewis – an expert family lawyer and leading mediator who is a partner of Gadens in Sydney. Paul has been nominated for the Mediator of the Year category of the 2020 Australasian Law Awards.
The classical model of mediation is ”facilitative mediation” during which the mediator’s primary function is to encourage meaningful and constructive dialogue between the parties, without providing any comment or opinion on the substance of the dispute or providing suggestions or ”options” to assist the resolution of the dispute.
The requirement that a facilitative mediator refrain from ”entering the fray” springs from one of the underlying foundations of facilitative mediation, namely, the concept of ”self-determination” and the related concept of ”party autonomy”. It is worth noting that the advent of facilitative mediation arose through the germination and growth of ”community mediation” in the United States of America from the 1960s through to the 1970’s. Community mediation settled in Australia with the passage of the Community Justice Centres Act 1983 (NSW), the legislation explicitly adopting the principles of facilitative mediation.
References to evaluative mediation, sometimes called ”advisory mediation”, arose after the formal justice system began to co-opt mediation in to its prescriptive rules and case management procedures. This happened in Australia from the early 1990’s onwards and occurred earlier in North America. Under the model of evaluative mediation, the mediator is permitted to provide his or her views and professional observations about the content of the dispute on the basis that the mediator is a ”subject matter expert” in relation to the dispute.
The NADRAC glossary of dispute resolution terms (first published in 1997 and updated in 2012) describes evaluative mediation as follows:
”Evaluative mediation is a term used to describe processes where a mediator, as well as facilitating negotiation between the parties, also evaluates the merits of the dispute and provides suggestions as to its resolution. (See also combined processes.) Note: evaluative mediation may be seen as a contradiction in terms since it is inconsistent with the definition of mediation provided in this glossary.”
Standard objections to the evaluative model of mediation in civil cases include the following:
- that the introduction of an evaluative component by the mediator may cruel, or at least stifle dialogue between the parties;
- that the selection of an evaluative mediation model may see the parties, or one of them, adopt a passive stance in order to find out what an independent mediator thinks of the dispute, thereby defeating the intrinsic value of the mediation as an opportunity to reach a negotiated agreement; and
- that a professional viewpoint or opinion expressed by a mediator will merely be one view among a range of possible views, and therefore not helpful in moving the parties towards agreement.
In the context of the evaluative mediation of financial cases under the Family Law Act 1975 (”the Act”), the above objections are, in practice, overstated. The law in relation to property settlements under the Act is described, in jurisprudential terms, as a ”discretionary property regime” in contrast to a ”community property regime” seen in overseas jurisdictions such as New Zealand, South Africa, California and other states of the United States of America. Similarly, the determination of spousal maintenance cases under the Act involves the exercise of discretion by the Court within the parameters of the legislative framework and statutory criteria, and the associated caselaw.
Systems of family law based on discretion, rather than fixed rules, are rationalised on the basis that they provide individualised justice and better justice in the vast majority of cases. The disadvantage of discretionary regimes is said to be unpredictability, and there is merit in that assessment. Community property regimes provide greater certainty or predictability but at the expense of just outcomes in many cases (being equivalent to a ”one size fits all” approach.)
In a discretionary family law system, mediation calls for an evaluative model, at least in financial cases. Many parties, even when they are legally represented, have firmly held views about ”fairness”, such views being highly subjective and often contrary to well-established legal principles in the vast majority of cases. It is advantageous to have a subject matter expert as the mediator in such financial cases, and for the mediator to be able to inject an evaluative component during the mediation if it might resolve an impasse, correct a misstatement of the law or bridge the gap between the parties’ respective bargaining positions by the identification of unexpressed needs and generation of additional options .
A good evaluative mediator is judicious with the expression of his or her evaluative opinion or input during the mediation. Indeed, the reason that evaluative mediation is often described as a ”blended process” in the mediation literature is because a good evaluative mediator will approach the mediation in the early stages as a facilitative mediation. An evaluative mediator hangs back and checks out whether the parties may be able to reach a negotiated agreement ”under their own steam.” The latter observations are critical in deflecting the criticisms inherent in the typical objections to the evaluative mediation process, as stated above.
It is important that the process of evaluative mediation is explained to parties during their preliminary conferences (separate preliminary conferences are the norm in family law cases, not just parenting cases). Further, the nature of the process must be clearly identified and described in the agreement to mediate.
At a micro level, the ways in which the mediator introduces an evaluative component must always strive to meet the other process requirements in mediation of impartiality and procedural fairness. Mediation clients readily understand the concept of the evaluative mediator having the liberty or discretion to inject his or her viewpoint during the mediation if the mediator believes ”that doing so may assist the parties reach a resolution of the matter.”
Paul A. Lewis Gadens, Sydney ©