There are various approaches that the parties may employ or be subject to while undertaking the process of mediation. The two that stand out are the 𝐅𝐚𝐜𝐢𝐥𝐢𝐭𝐚𝐭𝐢𝐯𝐞 and 𝐄𝐯𝐚𝐥𝐮𝐚𝐭𝐢𝐯𝐞 approaches.

The differences between them can be boiled down to:

1. 𝐑𝐨𝐥𝐞 𝐨𝐟 𝐌𝐞𝐝𝐢𝐚𝐭𝐨𝐫 – In facilitative mediation, the mediator’s role is restricted to bringing parties to a mutually agreeable resolution, without giving their opinions on any part of the dispute.

In evaluative mediation, the mediator guides the parties by helping them assess the potential outcomes of their legal strategies, which helps identify the zone of potential agreement (ZOPA). The mediator is still primarily a facilitator and does not play a proactive role.

2. 𝐁𝐚𝐜𝐤𝐠𝐫𝐨𝐮𝐧𝐝 𝐨𝐟 𝐌𝐞𝐝𝐢𝐚𝐭𝐨𝐫 – In facilitative mediation, the mediator may be any person with or without any experience or background in the field of the dispute.

In evaluative mediation, the mediator is usually a lawyer or a person with experience in the area of the dispute.

3. 𝐈𝐧𝐯𝐨𝐥𝐯𝐞𝐦𝐞𝐧𝐭 𝐨𝐟 𝐩𝐚𝐫𝐭𝐢𝐞𝐬 – In facilitative mediation, the parties may be represented by lawyers but the premise behind this approach is that the parties themselves are best suited to resolve their dispute.

In the evaluative approach, the lawyers representing the parties are active participants in the mediation. The mediator discusses and informs the parties of the likely outcomes of various legal strategies and the costs associated with the same, in order to bring them to a resolution.

4. 𝐍𝐚𝐭𝐮𝐫𝐞 𝐨𝐟 𝐏𝐫𝐨𝐜𝐞𝐞𝐝𝐢𝐧𝐠𝐬 – In facilitative mediation, the mediator usually takes joint sessions with all the parties with the focus on the parties resolving their dispute based on informed decisions. Caucuses, though popular, do not form an essential part of the proceedings.

In evaluative mediation, the mediator may meet the parties and/or their lawyers separately. Caucuses and individual meetings form a crucial part of this approach.

5. 𝐄𝐱𝐚𝐦𝐩𝐥𝐞𝐬 – The facilitative approach may be seen in residential disputes between neighbours.

The evaluative approach may be observed in court mandated mediation.