Mediation in Minnesota divorce proceedings involves both spouses meeting with a neutral third party (who is frequently a divorce attorney) to discuss and attempt to resolve the disputed divorce issues. Mediation can be accomplished at anytime during the divorce process, or even before the divorce proceedings are commenced. If a complete agreement is reached in mediation, the agreement must be documented and incorporated into a Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree of Dissolution of Marriage for the spouses to sign and then submit to the court for filing. If either or both of the spouses has an attorney, usually the attorney drafts such documents.

What is the Difference Between Facilitative and Evaluative Mediation?

Traditionally, in Minnesota all mediation was facilitative in nature. By definition, facilitative mediation is “a forum in which a neutral third party facilitates communication between parties to promote settlement.” In facilitative mediation, a mediator may not impose his or her own judgment on the issues for that of the parties. Therefore, the mediator can not give evaluative feedback on likely outcomes or opinions on facts or applicable law. A facilitative mediator does just that: he or she allows each side to state their respective positions on the issues, and the mediator then attempts to facilitate an agreement between them. In true facilitative mediation, if the mediator has thoughts and ideas on possible solutions, the mediator cannot make those recommendations or suggestions. The mediator can simply attempt to guide the parties to common ground without interjecting their evaluative feedback.

In evaluative mediation, the mediator usually starts with a facilitative approach, but if an agreement cannot be reached, the mediator will offer his or her thoughts, ideas and evaluative feedback on the issues. This evaluative feedback may be on simple roadblocks that are encountered during the mediation session, or may be regarding the larger issues that are being mediated, such a as child custody labels, parenting time schedule, whether to impute income for child support purposes, and proper amounts and durations for spousal maintenance obligations. The individuals participating in mediation must give the mediator permission to provide evaluative feedback. If they do not, the mediation process is limited to facilitative mediation.

Pros and cons

There are pros and cons to both facilitative and evaluative mediation. In true facilitative mediation, the mediator can almost always maintain a true “neutral” position in the dispute, since the mediator never truly reveals his or her thoughts on the issues in dispute. The downside to facilitative mediation is that it can oftentimes drag on and take longer than it should, because the disputing individuals are unable to find common ground with the mediator only playing a facilitative role.

For evaluative mediation, the process can oftentimes move along more quickly, because the mediator does interject his or her thoughts and impressions. In particular, when the mediator is an experienced and respected attorney or professional, the individuals frequently will defer to the mediator’s expertise. Such an approach can lead to quick results. However, when the mediator does interject his or her thoughts on the dispute, sometimes that results in agreeing with one of the individuals and disagreeing with the other. When this happens, one of the the individuals may lose trust in the mediator or the entire mediation process. A good evaluative mediator will identify any potential sensitive issues and topics, and when offering evaluative feedback, will do so carefully so as to not offend either of the individuals.