- About evaluative mediation
- How does evaluative mediation work?
- The main goal of evaluative mediation
- Pros and cons
- Is evaluative mediation right for you?
You've agreed to divorce, but there's a power imbalance between you and your spouse. You'd like to stay out of court, but you're worried about being bullied into an unfair divorce agreement. Evaluative mediation could be right for you.
Some couples enter evaluative mediation due to a court order, but anyone could hire a skilled professional who uses this technique. Understanding how it works could help you determine if this is the right mediation approach for you.
What is evaluative mediation?
Couples must make many decisions during a divorce. Child custody, spousal support, and asset disbursement are all complex issues, and often, couples can't work through them without help. Evaluative mediation allows you to work with an impartial and trained professional who can offer potential solutions.
In other forms of mediation, a professional mediator refrains from offering any kind of solution. During an evaluative mediation, the professional's role is to do the following:
- Listen to the couples
- Assess the legal validity of each party's claim
- Craft potential settlement recommendations
- Encourage both parties to agree
Lawyers often conduct evaluative mediations. They lean on decades of legal expertise to guide their clients to a resolution. And they're adept at helping both parties understand how a court might rule on a proposed solution.
Often, couples leave these mediation sessions with a deeper understanding of why their proposed solution would not win in a courtroom. They're much more likely to negotiate when they realize they will never get exactly what they want in the divorce.
How does evaluative mediation work?
Evaluative mediators control the setup, execution, and outcome of the mediation. These professionals take an active role in the discussion, and they're invested in helping their clients resolve difficulties.
A typical evaluative mediation follows this process:
- Introduction: The mediator introduces both parties to the concept and explains how it will work.
- Positioning: The mediator introduces a topic, and each party explains what they want and why their case is compelling. The mediator asks follow-up questions and listens closely to each side.
- Evaluation: The mediator illuminates the strengths and weaknesses of each side's position and outlines how a typical court would rule if given the same data.
- Recommendation: The mediator offers a potential resolution that seems fair and legally responsible.
- Negotiation: Parties move to separate rooms and the mediator shifts between them. Couples may alter minor points of the recommendation to make it palatable and acceptable.
- Completion: Couples agree and write their terms in documents filed with the court.
Evaluative mediation can be particularly helpful for couples who aren't sure of their position and want legal advice. Since couples aren't required to talk with one another directly, this type of mediation can also help people who cannot work face-to-face due to a power imbalance.
What is the main goal of evaluative mediation?
All mediations are designed to help couples agree and move the divorce process forward. But evaluative mediations are specifically designed to help people see the legal merits of their case.
For example, a couple may enter evaluative mediation due to a difficult child custody issue. Both parties want full custody of the child, and neither wants the other to visit.
An evaluative mediator can point out how child welfare laws typically encourage both parents to remain involved and engaged. They may help parents understand how their positions are legally indefensible. They may settle on a more equitable arrangement as a result.
What are the pros and cons of evaluative mediation?
If you're ordered to work with a mediator during the divorce, you're likely to enter an evaluative mediation. Roadblocks that might take months to unravel in court could be solved within a session or two. You'll avoid spending more time and money in court, and you'll likely get at least something you want.
But evaluative mediation puts the end of your marriage in someone else's hands. You won't negotiate with your partner directly, and you won't learn how to solve problems together.
If you continue to fight, which seems likely, every connection could be painful. If you share custody of children, this problem will worsen. Other forms of mediation could help you learn how to work together effectively. This can benefit you in both the short and long term.
Is evaluative mediation right for you?
This form of mediation is especially beneficial for couples with power imbalances. If your spouse has a history of bullying you, attacking you, or otherwise limiting your free speech, this form of mediation may be helpful. Your mediator will protect your interests throughout every step of the process.
If a court orders you to mediation, you may not be allowed to choose the type. But if you can hire your own professional, this could be a good option to end a marriage rife with conflict.
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ReferencesTypes of Mediation: Choose the Type Best Suited to Your Conflict. (December 2022). Harvard Law School.
Types of Mediation: Evaluative, Facilitative, and Transformative. (August 2022). ADR Times.
The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence. (Fall 1998). Marquette Law Review.
Facilitative Versus Evaluative Mediation: Is There Necessarily a Dichotomy? (December 2016). Asian Journal on Mediation.