OHIO STATE JOURNAL ON DISPUTE RESOLUTION
(Vol. 27:2 2012]
mediators of tools that could be used to move disputes more quickly towards
resolution. Such evaluative mediators argue that in certain circumstances
mediators better help parties resolve disputes if they selectively address the
substance of the dispute where appropriate and/or offer suggestions about
how it might be resolved.93
Although many, including this author, remain dedicated to the idea that
facilitative mediation is preferable in most instances,94 there is growing
acknowledgment that in certain kinds of mediations, evaluative techniques
may be appropriate.95 Mediators who possess substantive expertise in a
specific field can use that knowledge and experience to aid the resolution of
certain kinds of disputes.9 6 Post-election process dispute resolution, for
reasons to follow, falls into this category.
Scholars have pointed to a number of ways an "expert" mediator can be
useful. For example, a mediator with substantive expertise can help by
educating the parties about ways in which the law may vindicate their rights
or ways in which similarly situated parties have resolved their disputes.9 7
Mediators with substantive expertise may also help parties avoid an unfair
result. 98 Mediators with subject matter experience can also raise bidden
dangers that parties might not foresee or provide ideas for options that have
been useful in other contexts.99
93 L. Randolph Lowry, To Evaluate or Not: That Is Not the Question, 38 FAM. &
CONCIUATION CTS. REv. 48, 55 (2000) ("evaluation is a technique to move parties from
positions they have taken that have resulted in impasse to a mutually agreeable position
so a settlement then takes place.").
94 Huge concerns about party self-determination, mediator neutrality, and problems
associated with quality control of mediator evaluations drives this skepticism. See supra
note 82.
95 It should be noted that facilitative mediation techniques need not be thrown out
the window when an evaluative model is adopted. Indeed, the best evaluative mediators
recognize the benefits of facilitative principles and work to incorporate them as they
mediate, effectively shifting between a facilitative and evaluative approach as the
situation dictates. Telephone Interview with Howard Bellman (August 15, 2011).
96 Brian Jarrett, The Future of Mediation: A Sociological Perspective, 2009 J. DISP.
RESOL. 49, 70 (2009) (noting that sector specialization has led in some instances to the
beneficial use of a more evaluative approach, Jarrett uses U.N. conciliation efforts as an
example in which, "the United Nations provides a kind of practical power politics in its
mediation programs that have precious little to do with the objectivity, impartiality, and
neutrality associated with the facilitative model.").
97 Scott H. Hughes, Facilitative Mediation or Evaluative Mediation: May Your
Choice Be A Wise One, 59 ALA. LAW. 246, 247 (1998).
98 Id.
99 Cris M. Currie, Mediating Off the Grid, 59 DISP. RESOL. J. 9, 12 (2004).
348
HeinOnline -- 27 Ohio St. J. on Disp. Resol. 348 2012
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