Evaluative mediation may be less established in Belgian practice than in certain other jurisdictions. However, it should not automatically be regarded as a violation of the fundamental principles of mediation.
On the contrary, a carefully calibrated evaluative approach, including a mediator’s proposal where appropriate and as final step, may significantly increase the prospects of achieving a timely and mutually acceptable settlement.
Ultimately, the quality of mediation should not be measured by the mediator’s reluctance to express possible outcome, but by the ability to assist parties in reaching an informed, voluntary and sustainable solution.
Neutrality is not synonymous with a lack of proactivity. Sometimes, the most valuable contribution of a neutral mediator is precisely to proactively help the parties find the solution they cannot reach on their own.
During a recent seminar organized by DIPLOMED and taking place at FLINN.LAW it was reconfirmed mediation has become an increasingly important instrument for resolving disputes, particularly in an international business environment where lengthy litigation can be costly, unpredictable and damaging to business relationships.
Yet, not all mediation processes follow the same approach. One of the most interesting distinctions is between facilitative and evaluative mediation, and more specifically, the controversial role of the mediator’s proposal.
Facilitative mediation: empowering the parties
In the traditional facilitative model, the mediator acts primarily as a neutral process manager. The mediator facilitates communication, identifies underlying interests, helps overcome misunderstandings and assists the parties in developing their own solutions.
The mediator refrains from expressing opinions on the legal merits of the dispute or recommending a particular outcome. The underlying philosophy is that the parties themselves are best placed to determine what constitutes an acceptable settlement.
This approach is particularly valuable where preserving relationships, restoring trust or developing creative solutions beyond strictly legal remedies is essential.
Evaluative mediation: introducing a reality check
Evaluative mediation takes a somewhat different approach. While remaining impartial, the mediator may proactively assess the parties’ respective positions, identify weaknesses in their legal arguments, discuss litigation risks and, where appropriate, suggest possible settlement parameters.
This approach is particularly relevant in complex commercial disputes, where parties are often represented by experienced legal counsel and where the disagreement may concern the interpretation of contractual obligations, the assessment of liability or the valuation of financial claims.
An evaluative mediator does not replace the judge or arbitrator. Rather, the mediator provides an additional perspective, allowing the parties to reassess their positions against the background of legal, commercial and practical realities.
Importantly, facilitative and evaluative mediation should not necessarily be considered mutually exclusive. An experienced mediator may combine both techniques, adapting the process to the nature of the dispute and the expectations of the parties agreeing on such methodology.
Does evaluation compromise neutrality?
In Belgium, mediation has traditionally been associated with a predominantly facilitative approach, emphasizing the mediator’s neutrality, impartiality and the parties’ autonomy.
Consequently, evaluative techniques may sometimes be perceived as inconsistent with the mediator’s role and even with the Code of Ethics of the BFMC, which states that the requirement of neutrality does not permit the mediator to provide the parties with advice, other than references to similar cases of which he is aware, that could influence the resolution of their dispute.
But does neutrality necessarily require the mediator to remain silent on the merits of the dispute?
In our view, the answer is no. A distinction must be made between neutrality and a lack of proactivity. A mediator who objectively identifies litigation risks or suggests a balanced settlement does not necessarily abandon neutrality. The essential safeguards are transparency and mutual consent regarding the mediator’s role, equal treatment, impartiality, confidentiality and the absence of coercion.
Naturally, an evaluative intervention must remain compatible with the applicable legal and ethical framework, including the Belgian rules governing accredited mediators. The mediator must never impose a solution or transform the mediation into a disguised adjudication.
The mediator’s proposal: breaking the deadlock
One particularly interesting evaluative technique is the mediator’s proposal, frequently encountered in US commercial mediation practice.
When negotiations reach an impasse, the mediator may formulate a concrete settlement proposal, often after confidential discussions with each party.
Under one commonly used procedure, the proposal is submitted to both parties on a confidential, take-it-or-leave-it basis. Each party communicates its acceptance or rejection privately to the mediator. A settlement is reached only if both (all) parties accept. If either party rejects the proposal, the mediator may simply announce that no agreement was reached, without revealing the individual responses.
This mechanism offers several advantages. It allows parties to accept a settlement without appearing to have conceded to their opponent. It may overcome psychological barriers, unrealistic expectations and strategic positioning. Above all, it can provide an efficient exit from negotiations that would otherwise remain deadlocked.
Conclusion: The essential principle is that the mediator proposes but never imposes.
By combining confidential consultations (‘caucus’), an independent assessment and a carefully designed acceptance mechanism, MAD – Make a Deal seeks to transform seemingly irreconcilable positions into practical, efficient and mutually acceptable solutions, without compromising the mediator’s impartiality and neutrality or the voluntary nature of mediation.
Benoit Simpelaere – Nancy Maes
FLINN.LAW | MAD-MAKE A DEAL — International Dispute Resolution & Mediation
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