Mediation has become a trusted way to resolve disputes without going to court. Instead of letting a judge decide, people in conflict work with a neutral person—the mediator—to find a solution that fits both sides. But not all mediation is the same. The two most common types are facilitative mediation and evaluative mediation. Each takes a different approach to helping people reach agreements.
Let’s explore how these methods work, when they are used, and what makes them different.
Facilitative Mediation Explained
What Is Facilitative Mediation?
Facilitative mediation is the most traditional form of mediation. In this method, the mediator acts as a guide, helping both parties talk openly, share concerns, and understand each other. The mediator does not give legal advice or suggest solutions. Instead, they focus on helping both sides find their own answers.
Facilitative mediation is widely used in community disputes, workplace disagreements, and family matters like divorce or child custody. If you know What’s the mediation in law
How Does It Work?
Here’s how facilitative mediation usually takes place:
Opening Statements: Each party gets a chance to explain their side of the story.
Clarifying Issues: The mediator asks questions to clear up confusion and narrow down the key problems.
Joint Discussions: Both sides talk directly, with the mediator keeping the conversation respectful and focused.
Private Sessions (if needed): The mediator may meet with each party separately to better understand their concerns.
Finding Agreement: The parties explore solutions together, aiming for a mutual agreement.
The process is structured, but it gives both sides the chance to control the outcome.
What Is the Mediator’s Role?
In facilitative mediation, the mediator’s job is to:
Keep the conversation balanced and respectful
Ask open-ended questions
Help each side understand the other’s point of view
Make sure the process stays fair
The mediator does not take sides, give opinions, or suggest who is right or wrong. They guide, but they don’t lead the parties to a fixed solution.
When Is Facilitative Mediation Most Useful?
Facilitative mediation works best in situations where:
The parties need to preserve a relationship (e.g. co-parents, business partners)
The issue is emotionally charged and both sides need to feel heard
The parties want full control over the final agreement
Example Use Cases:
Divorce and child custody agreements
Employee–employer disputes
Landlord–tenant conflicts
Community issues
According to a 2018 report by the American Bar Association, facilitative mediation is still the most common form of mediation used in family law matters.
What Is Evaluative Mediation?
How It Differs from Facilitative Mediation
Evaluative mediation takes a more direct approach. The mediator in this type is often a retired judge or experienced attorney who uses their legal background to evaluate the case.
They may tell each side how strong or weak their case is and suggest possible outcomes if the dispute went to court.
This approach is more focused on the law, rather than just communication.
Legal Opinions and Case Strength
One of the key features of evaluative mediation is the legal insight the mediator brings. They:
Point out legal risks or weak arguments
Share what a court might decide in a similar case
Recommend specific outcomes
Push for settlement based on legal standards
This type of mediation feels closer to a courtroom experience, but still gives both parties a chance to avoid trial.
The Role of the “Lawyer-like” Mediator
Evaluative mediators often behave like a legal advisor:
They analyze documents and case history
They may suggest settlement ranges
They’re more likely to interrupt or direct the conversation
These mediators aim to move the parties toward settlement, especially when time, money, or legal risk is high.
When Is Evaluative Mediation Most Effective?
Evaluative mediation works best when:
Legal rights are in dispute
One or both parties want an expert opinion
Time and cost savings are a major concern
The case may go to court if mediation fails
Example Use Cases:
Commercial contract disputes
Personal injury claims
Business partnership dissolutions
Construction and property conflicts
A 2021 study published in Dispute Resolution Magazine found that evaluative mediation was the preferred method in over 60% of commercial legal disputes in the United States.
Facilitative vs. Evaluative Mediation: Key Differences
| Feature | Facilitative Mediation | Evaluative Mediation |
|---|---|---|
| Mediator’s Role | Guide the conversation | Provide legal opinions |
| Decision Making | Left to the parties | Influenced by mediator |
| Tone | Cooperative | Directive |
| Best For | Ongoing relationships | Legal or high-stakes cases |
| Typical Background of Mediator | Trained neutral | Retired judge or lawyer |
Which Type Should You Choose?
Choosing the right type of mediation depends on:
The nature of your conflict
Whether you need a neutral guide or a legal expert
Your goal—mutual understanding or legal resolution
You don’t have to choose on your own. Many mediators offer pre-mediation consultations to help parties pick the right process.
Final Thoughts from an Expert
I’ve worked with both types of mediation in many legal settings. Facilitative mediation builds better understanding. Evaluative mediation often gets quicker results. There’s no one-size-fits-all solution, but knowing the difference helps you make a smart choice.
If you’re unsure which path to take, talk to a certified mediator or your attorney. You’ll save time, reduce stress, and possibly avoid a long court process.