Evaluative Mediation suits the Construction Industry

Douglas Beckwith
Friday, March 3, 2023

What is Evaluative Mediation?


Evaluative mediation is a type of mediation where the mediator exerts the most control throughout the mediation and is the most vocal about the positions of the parties and their offers.  An evaluative mediator will offer opinions on the strengths and weaknesses of the parties and control how and when the parties interact.  This mediation process tends to work well if there is an uneven power dynamic in the mediation, such as in many construction contracts and sub-contracts.  This allows the mediator to drive the conversation to focus on the important issues and what the parties need.  Evaluative mediation is modeled after settlement conferences held by judges and is the oldest and original style of mediation.  Unlike facilitative mediators, evaluative mediators not only control procedure but also the outcome of the mediation

Characteristics of Evaluative Mediation

Some common characteristics of evaluative mediation carried out by Mensura's mediators include:

  • Assessment: The evaluative mediation style assesses the situation at hand at all times. Everything mentioned by the parties will be considered and evaluated by the evaluative mediator.  This ensures that the evaluative mediator is not missing anything when they make their evaluation.
  • Listening: This goes with the assessment characteristic above, but to properly assess the situation, the evaluative mediator will often practice attentive listening and make sure to fully understand everything that a party offers. The evaluative mediation style helps the parties feel that their case is being heard fully and completely.
  • Evaluation: After listening to the parties’ cases, the mediator will evaluate the strengths and weaknesses of the positions and offer an honest evaluation of each party’s case.  This helps the parties understand where they stand and where their bargaining power lies.
  • Predictions: An evaluative mediator will often offer predictions of how a party’s case or position would fair in a traditional court if the parties are unable to settle.  This can help adjust a party’s inflated sense of their case.
  • Recommendations: The evaluative mediator will also present a recommendation for settlement.  This can be an informal suggestion after the initial evaluation or it can be a formal suggestion written and presented to the parties as an opening option.  The evaluative mediation technique encourages the parties to consider a settlement based on the strengths of their case.
  • Shuttle Diplomacy: Evaluative mediation often focuses on separating the parties, speaking with each of them separately, and then shuttling the information they agree to share with the parties involved.  This allows the evaluative mediator to shape the conversation and encourage the parties to consider the weakness of their case without having to face those questions in front of the opposing party.

It's dispute resolution that the Construction Industry wants!

Despite mediator training over the years focusing on the facilitative method of mediation, participants in the construction industry much prefer evaluative mediation.  This can be very helpful for parties that are unsure of their positions and need someone to evaluate their case and offer suggestions.  It can also be helpful for parties who are unable to voice their needs and interests well to the other party directly.  Evaluative mediation gives the parties permission to consider their strengths and weaknesses and has a neutral evaluation of the strength of a case.  Evaluative mediation  is also used in our Executive Dispute Resolution Service Product.


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