Resources & Insights

Evaluative or Interest Based Mediation

If you want your family law or estate litigation dispute resolved, then mediation can be a fast, cost effective and creative way to do so.  However, everyone involved should consider whether an evaluative or interest-based approach is better (or maybe a combination of the two).  To understand why, it’s important to understand the differences in these approaches to mediation.

With an evaluative approach to mediation, the mediator will get involved with understanding the facts of the case and will actively make factual determinations.  The mediator will also have to have an understanding of the law and be prepared to make recommendations about likely legal outcomes if the matter has to be resolved by a judge or an arbitrator.  In this approach to mediation, the mediator is much more directive and the mediator, not the parties, is generating the solutions.

Interest based mediation is more collaborative.  The mediator’s role in this approach is to facilitate discussion between the parties and assist them in developing solutions to their dispute that work for them and meets their needs.  This approach encourages more dialogue, active listening and attempts to get parties to work more directly with each other to resolve their disagreement.

Determining which approach to mediation to take is important.  Complex legal disputes that may need to be resolved through an expensive trial lend themselves to evaluative mediation.  On the other hand, if continuing relationships are important and creative solutions to legal disputes are possible then interest-based mediation is appropriate.  There are often opportunities to try both approaches, if there’s enough time and good will.  

No matter how you, or the mediator, approaches a mediation, using mediation to resolve your disputes drastically increases the amount of control you have in resolving your disputes and is almost always faster and less expensive than what happens in court.

Written by David Harris-Lowe