What to Expect at Evaluative Mediation: Preparation, Process, and Potential Outcomes

Navigating a family law dispute through evaluative mediation can be a highly constructive alternative to litigation. This process offers clients the opportunity to settle contentious issues with the help of an experienced mediator who provides insight into the strengths and weaknesses of each side’s case. Unlike facilitative mediation, which focuses solely on guiding parties toward an agreement, evaluative mediation incorporates legal assessment, providing both clients with a realistic perspective on how a judge might view their case. Here’s what you can expect, how to prepare, and the potential outcomes.

Preparing for Evaluative Mediation

Understand Your Goals and Priorities

The first step is understanding what you want to achieve from mediation. This could mean setting priorities, such as achieving a fair parenting plan or minimizing financial disruption. By clearly defining your goals and expectations, you can more easily assess whether the proposed outcomes align with your best interests.

A mediation brief outlining your case and the proposals you are offering is drafted and provided to the mediator two days before mediation. This provides necessary information and context to the mediator so that productive conversations can begin immediately without debriefing the mediator the morning of mediation.

Gather Necessary Documentation

Be prepared to provide documentation relevant to your case. This could include financial statements, employment records, or any pertinent evidence that might influence property division, spousal support, or parenting arrangements. Your attorney can help you determine which documents to prioritize based on the likely topics of mediation.

Prepare Mentally and Emotionally

Entering mediation with a balanced mindset can make a significant difference. Discuss strategies for remaining calm and focused, especially if high emotions are involved. Remember that mediators are neutral facilitators whose role is to help you reach a settlement—not to take sides.

What to Expect on the Day of Mediation

Mediation will be scheduled for one day either in person or via Zoom. It will start in the morning and end when you reach agreement or terminate mediation, sometimes lasting into the evening. This is a long and exhausting day. Make sure you have food and drinks as there will be limited time to take breaks.

Whether mediation is in person or via Zoom, you will be in separate rooms from the other side. Each party meets individually with the mediator in their separate rooms. Here’s how a typical day unfolds:

Mediator Introduces Themselves and Explains Mediator Role and Limitations

The mediator will explain their role and limitations. An evaluative mediator is both a facilitator and an evaluator. They are there to identify common ground and suggest solutions, but they will also provide a reality check. If a party’s expectations seem out of step with legal norms or the probable court outcome, the mediator will openly share their view on how the court might rule. However, the mediator remains neutral—they are not there to advocate for either side or dictate an agreement.

The mediator will then invite each party to give an opening statement, allowing both sides to outline their perspective. This initial session allows the mediator to hear the core issues from each party's viewpoint.

Mediator Limitations:

• Neutrality and Confidentiality: The mediator must remain neutral and cannot disclose information shared in private sessions unless authorized by the party.
• Non-Binding Opinions: Although the mediator may offer an evaluation of each side’s case, they cannot make binding decisions. This role is advisory only.
• No Legal Advice: The mediator’s evaluation provides perspective but not specific legal advice. It is important to rely on your attorney for tailored legal guidance.

Negotiations

During private sessions, the mediator meets with each party separately, going back and forth between rooms to deliver negotiation proposals. The mediator explores possible settlements, evaluates each party’s stance, and discusses potential weaknesses in their case. The mediator’s evaluative role becomes more apparent here, as they offer insight on what a likely court outcome might look like based on the presented facts.

Potential Outcomes of Evaluative Mediation

Mediation is voluntary. No party can be forced to agree to anything at mediation.

If Agreement Is Reached

When an agreement is reached, the mediator drafts a CR2a Agreement outlining the terms. A CR2a Agreement is a binding and enforceable document. Once it is signed, the case is settled. Each party’s attorney reviews the CR2a Agreement and drafts the final legal documents needed to finalize the divorce with the court. This agreement allows both parties to avoid litigation, preserving time, money, and reducing emotional strain.

If Agreement Is Not Reached

If an agreement cannot be reached, both parties still benefit from a clearer understanding of their case’s strengths and weaknesses. Sometimes, even when mediation does not yield an immediate agreement, parties come away with insights that facilitate a later resolution. Should litigation be the next step, the issues will be more narrowly defined, potentially streamlining the court process.

Evaluative mediation offers a path toward resolution grounded in a realistic appraisal of your case’s strengths and weaknesses. By knowing what to expect and preparing thoughtfully, you can make the most of this process, regardless of whether an agreement is reached.