Facilitative, Evaluative, and Transformational are Functions, not Types, of Divorce Mediation
Divorce mediation websites often discuss mediation as if there were three distinct types of mediation: facilitative, evaluative, and transformative. This is highly misleading, as there are not three discrete types of divorce mediation. The three terms–facilitative, evaluative, and transformative—refer not to discrete types of mediation but rather to specific practices or functions within a divorce mediator’s way of working. All mediators will engage in practices that serve these three functions to one extent or another, so it is a question of emphasis in a mediator’s style, rather than of discrete types.
The important dimension for divorce mediation is whether a divorce mediator is relatively “facilitative” or relatively “evaluative” in their practice. These terms were popularized by Leonard Riskin in a highly cited 1996 article in the Harvard Negotiation Law Review entitled “Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed” (1(1), 7–51). In this article he conceptualizes facilitative and evaluative functions or strategies not as entirely discrete types but rather as ends of an axis or continuum. (As will be discussed below, the transformational functions of divorce mediation are limited, and such transformational effects are much better pursued with a family counselor than in a divorce mediation.)
In practical terms therefore, the question you can ask a potential mediator for your divorce is not, “What type of divorce mediation do you do?” but rather, “Is your style of divorce mediation more on the facilitative end of the continuum or more on the evaluative end of the continuum?” Rephrased into everyday language, the question is “Are you a relatively passive mediator who facilitates our discussions and helps us communicate with each other? Or are you a relatively active mediator who not only facilitates communication, but also uses legal knowledge and experience to provide us with information about divorce law and common divorce practices and guides our discussion on the key decision points required by a divorce agreement?”
The Facilitative Function of Divorce Mediation
The facilitative function is the defining feature of divorce mediation. A neutral mediator helps spouses who may be experiencing conflict and strong emotions to have discussions about the terms of their divorce. The terms of the divorce are decided upon and agreed upon by the spouses. The mediator does not favor one side or the other and does not determine the terms of the divorce. The mediator is helping the couple to have reasonable discussions when they may not be able to do that on their own.
The mediator or attorney mediator prepares all the required court documents that reflect the couple’s decisions. The end result of this process is an “uncontested” divorce, in which the divorce agreement is presented to a judge who simply signs the agreement, divorcing the couple. The judge does not decide the terms of the divorce but rather signs documents making the couple’s own decisions a court order.
The Evaluative Function of Divorce Mediation
The evaluative function in divorce mediation is served when the mediator provides information about divorce laws and common divorce practices. The evaluative function is practiced when the mediator guides the couple to the decision points—regarding parenting plan, child support, and division of assets among others—that form the basis of the eventual divorce agreement. This guidance is crucial if a couple want to reach a reasonable agreement that a judge will approve. If one spouse says, “I’m not going to pay child support!” or “I earned the money during our marriage, so I’m going to keep the house and all our savings!”, the mediator can inform him or her that the law in Massachusetts requires child support and that property from the marriage belongs to both spouses, cutting short discussion of fantastical scenarios that are directly against the law in Massachusetts.
Many divorce mediators, seeing themselves as only facilitators, confuse providing legal information with providing legal strategy and therefore try not to provide legal information, thinking that this compromises their neutrality or imposes their perspective on the couple. This is not the case. Providing information to a couple in ways that facilitate discussions oriented to reaching an agreement that allows a judge to sign their divorce is a tremendous service to that couple. Scholar Leonard Riskin (1996) was particularly clear in arguing that mediator neutrality does not require mediator passivity, and that a mediator who provides abundant legal information to couples may be more respectful of party’s autonomy than a mediator who refuses to provide it.
The Transformative Function of Mediation
Divorce mediation can encourage and model reasonable modes of discussion for divorcing couples, having a transformative effect on the ways they communicate. The emotions of divorce can overwhelm couples, making it difficult for them to work together on the practical issues in divorce. If the couple has children, it is vital that they be able to communicate in effective ways as they continue to co-parent their children after divorce. Divorce mediation—with its emphasis on encouraging couples to communicate and craft the details of their divorce—can show couples that it is possible for them to work together on the practical issues they will continue to negotiate as exes and possibly co-parents.
The transformative function of mediation was at the center of Baruch Bush and Folger’s 1994 book The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition. These authors see the possible empowerment of individuals to become self-aware and confident and the recognition of the perspectives and humanity of the other party to be the most important function of mediation. In fact, they argue that the goal of mediation should be moral and relational transformation, rather than reaching an agreement. In other words, if you experience some psychological and relational transformation, your divorce mediation is a success, even if you fail to come to agreement on the terms of a divorce and fail to create a divorce agreement that will enable you to divorce.
Needless to say, this degree of psychological growth is not what most couples seeking divorce mediation are looking for. Marriage counselors and family therapists—not divorce mediators–are specialists in helping couples to improve communication, work on their relationship, and experience personal growth.
Posted by Professor Benjamin Bailey, PhD