As a young construction litigator in the late 1980s, I was taught to screen potential mediators by asking whether they were “facilitative” or “evaluative” (also called “directive”) in their approach. While the “facilitative versus evaluative” question is still a valid one, a deeper dive may be helpful when considering potential mediators. Many mediators will use both facilitative and evaluative techniques. Since some evaluating by the mediator is probably expected and necessary in most mediations of construction disputes, it may be useful to ask proposed mediators when, how and under what circumstances they typically offer their opinions during the mediation process.
I. BENEFITS AND RISKS OF EVALUATION
In my experience, most parties and attorneys in construction disputes want and expect the mediator to provide some evaluative feedback on the merits of the dispute. That is the main reason construction clients and attorneys frequently seek mediators with a working knowledge of construction law and contracts, design concepts, means and methods, scheduling issues, and cost accounting. While construction experience itself clearly does not make one a good mediator, it does help establish a skillful mediator’s credibility with the parties and attorneys, and can help the mediator guide the mediation process.