Evaluative Mediation
When mediation needs an evaluative element
Evaluative mediation may assist where the parties want more than facilitation alone. In some claims, negotiations stall because the parties hold very different views about liability, causation, quantum or litigation risk. An evaluative element can provide a neutral, informed perspective to help the parties reconsider their positions.
This process still takes place within a mediation framework. The parties remain in control of the outcome, and no settlement is imposed. The evaluation is used to support decision-making, not to replace legal advice or the judgment of the parties’ representatives.
How evaluative mediation differs from facilitative mediation
In facilitative mediation, the mediator manages the negotiation process but does not give a view on the merits. In evaluative mediation, the mediator may, where agreed, provide an informed non-binding view on one or more issues.
The evaluation may concern liability, causation, quantum, prospects at trial, the likely settlement range or a specific point preventing progress. It is not a judgment. It is a neutral perspective within a confidential process, intended to support further negotiation.
When this approach may be appropriate
- the claim is complex or high value
- the parties are entrenched on a specific issue
- both sides want a more structured process
- there is a wide gap between risk assessments
- counsels’ advice has not led to movement
- the parties need help testing the strength of a position
- the cost of continued litigation is increasing
It may be particularly useful in claims involving difficult causation arguments, serious injury valuation, medical evidence, multiple experts or a significant difference between schedules and counter-schedules.
The role of the mediator
The mediator’s role remains neutral. Any evaluative input is provided with care and within the boundaries agreed by the parties and the mediator. It may be introduced only after facilitative discussions have taken place, or it may form part of the agreed structure from the outset.
A typical evaluative mediation process includes:
Suitability discussion
The parties consider whether an evaluative element is appropriate, what issues it may cover and whether the process should remain facilitative at first.
Agreement on scope
The parties and the mediator agree whether the evaluation may address liability, causation, quantum, litigation risk, likely settlement range or another defined issue.
Pre-mediation preparation
The parties provide key documents and position statements so the mediator can understand the dispute and the points on which evaluation may be requested.
Facilitative discussions
The mediation may begin with private discussions and negotiation in the usual facilitative way.
Evaluative input, where agreed
If appropriate, the mediator provides a neutral, non-binding view within the limits agreed by the parties and the mediator.
Continued negotiation or next steps
The parties decide how to respond to the evaluation and whether it helps move the claim towards settlement.
Control remains with the parties
Evaluative mediation does not remove control from the legal teams or clients. The parties decide whether to request or accept an evaluative element. They decide how to respond to it. They decide whether to settle.
This distinction is important. The process can help parties understand risk, but it does not require them to accept the mediator’s view. It creates a reference point for discussion, not an imposed outcome.
Online and in person delivery
Evaluative mediation can be delivered online or in person. Online delivery can reduce travel and make participation easier for clients, claims handlers and legal teams. In person mediation may be preferred where the dispute is particularly sensitive, multi-party or strategically complex.
The format should reflect the needs of the case, the people attending and the issues in dispute.
How can evaluative mediation support settlement?
Where positions are entrenched, repeated negotiation can become unproductive. Evaluative mediation can introduce a neutral view at a controlled point in the process. This may help parties reconsider best and worst-case outcomes, cost exposure, evidential uncertainty and the value of settlement.
It may also assist where one party needs a credible, independent reference point to discuss settlement internally with a client, insurer or claims committee.
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FAQs
Yes. The evaluative element should be agreed upon by the parties and the mediator and clearly understood before it is used.
No. It is not legal advice to either party. It is an independent, neutral view used to support negotiation within the mediation.
This depends on what the parties agree. In some cases, evaluative input may be considered after facilitative discussions have taken place. In others, the parties and the mediator may agree from the outset that the mediator can provide a view on a defined issue if it would assist settlement discussions.
Yes. The parties can choose a purely facilitative process if that is more suitable.
No. In evaluative mediation, the evaluation itself is non-binding unless the parties have made a separate agreement to the contrary. The parties may however then go on to make a binding settlement agreement.
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Initial Conversation
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Mediator Selection
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Preparation
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Mediation Day
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