Collaborative vs. Evaluative Divorce Mediation

Typically attorney mediators in Texas - and especially former judges turned divorce mediators who are used to being in charge of making decisions - do mediation differently than at Détente. Détente does collaborative mediation.  The others usually use what is called “evaluative” mediation. It is important to know the difference when choosing a mediator. 

In evaluative (or traditional) divorce mediation, the mediator’s job is to get the parties to agreement on all issues in one exhausting meeting that could last a half day, full day, or into the night. The evaluative mediator will not have previously worked through the development of the financial and parenting information with the parties like in Detente's collaborative mediation. Instead, the mediator hears from each attorney about his or her client’s positions and the strongest evidence to support them. That usually is done as a show of strength in an initial joint session with the lawyers and the parties together. If the divorce attorneys are particularly adversarial, a joint opening session can become quite contentious, which can inhibit settlement. For that reason, sometimes evaluative divorce mediators skip the joint session and go directly into “caucus”. 

Caucus is when the mediator splits the parties into separate rooms accompanied by their lawyers to get more details. The evaluative mediator then goes back and forth between them carrying messages, offers, and counter offers for as long as it takes to get a settlement, or until a party leaves, or the mediator declares an impasse. 

Evaluative mediators essentially get parties to agreement by creating “risk”. They point out to each party their own weaknesses and emphasize the strengths of the other side’s positions and evidence. If the parties and their lawyers are willing to listen, this exercise can be a “reality check”. Frequently each party before mediation has only heard good things from his or her own lawyer, and very little if any of their own downside (which the other side is happy to point out). Evaluative divorce mediators, especially those who are former family judges, often talk privately with each party and attorney about what he or she thinks the outcome on a good day and a bad day at trial would be. More importantly, they will likely share their experience of how each of the party’s arguments usually get decided in the parties' assigned judge’s court. 

Thus, evaluative mediation uses “positional bargaining” in what most lawyers and parties perceive as an adversarial process. The choices for settlement are often hastily crafted by the lawyers with less than optimal input from the clients. The evaluative mediator's opinion of a party's potential success in trial often comes into play in a party's decision to settle. Evaluative mediation tends to result in the parties' having so much fear of uncertainty at trial that they decide it is in their personal best interests (and those of the family) to control their own outcomes by settling and avoiding a bad outcome with a judge.

In contrast, at Détente we use “interest based” negotiation in a collaborative mediation process.  The approach is very different from evaluative. 

Instead of operating from a position of fear, the parties in collaborative mediation talk openly about what they really want to accomplish and why that outcome is important to them. No one will accept an offer that does not meet his or her interests and needs. Learning what the other party's interests are allows the offering party to propose terms of settlement that will be satisfactory. It also enables the offering party to come up with alternatives that may also meet those needs if the first proposal was not accepted.   

Detente has perfected an affordable, efficient, early consensual resolution process that does not require couples to go through divorce lawyers first. The advocacy of attorneys frequently turns spouses into adversaries, which in turn promotes positional bargaining between them instead of interest based negotiation. Couples save a tremendous amount of money by working together with the guidance of the professional Detente mediators to gather and exchange their own information during the mediation process itself rather than paying lawyers on each side to do it for them. The Detente collaborative mediators get to know the parties well. The focus is on learning what is most important to each of them and finding mutually acceptable agreements. Together with the mediators they consider the real life pros and cons of each option for settlement and calmly think through decisions rather than feeling forced to settle rather than risk losing at trial. Detente clients negotiate well-informed agreements that work for everyone and maximize financial and emotional stability. This also ensures parties do not settle out of pure exhaustion or because they have run out of money to continue to fight.

Detente clients decide whether, how, and when to use divorce attorneys during the mediation process. Detente collaborative divorce mediation is designed to make it possible to stay entirely out of litigation and the court system (except just to have the judge sign divorce papers or other orders). This gives the clients control over costs. People who are able to consider choices openly and analyze information freely and easily are often well served by collaborative mediation where there is tolerance for and time to explore lots of creative options. 

The settlement rate for evaluative style is about 80% versus 95% for collaborative mediation.

However, no matter which process of divorce mediation the parties use, when there is a very high level of conflict between the parties or personality disorders that make it impossible to reach compromises, then there is always the option of having a judge decide. But it comes at a cost. Even those who “win” at trial come out angrier and poorer and there are frequently damaging consequences to their relationship with their children. In contrast, parties who reach mutually acceptable agreements on some or all issues in collaborative divorce mediation are far more likely to report satisfaction even if the mediated agreements are less than perfect. Which mediation style is right for you? 

Want to know more?  Read about the differences between evaluative (traditional) mediation and collaborative mediation.