Evaluative Mediations are now offered by many highly experienced family arbitrators and former Judges. This approach differs from the traditional interest based approach where a mediator focuses on the parties’ interests in reaching settlement. Rather, the mediator focuses on the strengths and weaknesses of each parties’ case. Evaluative Mediation can be useful even if the parties have already tried an interest based mediation.

The mediator will evaluate the parties’ positions and evidence. They may make formal or informal recommendations. They will often make predictions as to the likely success of a party’s case if it was to go to trial. The goal is to ensure that the parties understand their risks associated with trial, and encourage the parties to settle.

Evaluative Mediation is focused on the legal rights and obligations of the parties, not necessarily their needs and wants. The mediation is strongly linked to the concept of legal fairness. The goal is to find a reasonable compromise, which will eliminate the risk of going to court.

In most cases, the parties are separated and the mediator “shuttles” between the parties. This allows for some very frank discussions. A cost benefit analysis of the potential outcomes at trial is often used. This is also called reality checking. The goal is to motivate settlement by helping the parties realistically assess their chances in court.

Lawyers are more often involved in Evaluative Mediation than in interest based mediations. This is because the focus is on legal rights and obligations. These mediations are often either court ordered, or held immediately before a trial.

In most cases, the parties are represented by lawyers and the lawyer will prepare a mediation brief outlining their case. In my practice, I do not share these briefs with the opposing party. The goal of the mediation is settlement, not a free preview of the opposing parties’ trial strategy. There are often calculation and other documents which help explain the party’s position. These are most often DivorceMate calculations and asset division spreadsheets. These I do tend to share with the other party.

In Evaluative Mediation, the mediator must have substantive legal expertise in the disputed area. For this reason, most Evaluative Mediators are lawyers or former judges.

At the end of the mediation, I often recommend each party makes a formal offer to settle based upon their experience at mediation. In most cases, where there is no settlement at mediation, the formal offer to settle achieves resolution.