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The problem with viewing facilitation as the only legitimate form of mediation, of course, is that it borders on tautology: mediation is nonevaluative, therefore any evaluation in mediation must be impermissible. Although this view remains strongly held in many quarters, it appears to be in retreat, both within the mediation community and in the legal community at large. Courts and commentators have shown increasing favor toward some evaluative or advising component of mediation. More important, the eclectic style appears to be what takes place in the metaphorical trenches of mediation practice (although sound empirical data is necessarily hard to obtain given the confidential nature of most mediation). In addition, it may be that the mixture of facilitation and evaluation in mediation varies with the type of case under consideration as well as with the particular disputants and mediator involved. A secondary thesis of this essay is that one appropriately finds more facilitative mediation in certain types of cases and more evaluative mediation in other types of cases. For example, family law matters, particularly issues of child custody and visitation, appear to more closely track the facilitative model. Commercial matters such as contract damage claims are likely to see more evaluation. Similarly, one expects to find and appears to find more mediation in the resolution of tort disputes between strangers. In a sense, mediation, like much of civil litigation, may exhibit a de facto specialization or “nontrans-substantivity” in that mediation style responds to the substance of the underlying disputes. There is no one uniform and generic way of mediating any more than there is one uniform and generic way of negotiating or litigating.

Publication Citation

2000 J. Disp. Res. 247 (2000).