Unlike facilitative mediation, evaluative mediation focuses on assessing the parties legal positions and may not take advantage of the fact that the complexity of environmental matters also provides opportunities for creative resolutions. It also tends to make the parties focus on the strengths and weaknesses of their case instead of solving the underlying problem. Parties who desire an evaluative approach are encouraged to consider nonbinding arbitration as a means by which to obtain a more realistic assessment of their legal positions. Facilitative mediation is analogous to the process used to solve most nonadversarial environmental issues where complex problems are solved by teams that work together to propose and appraise potential solutions. Mediation also allows parties to resolve disputes quicker, more efficiently, and more privately than judicial processes.
Parties have little to lose by trying mediation.
Participation in mediation does not waive the right to use more formal means of dispute resolution and frequently results in better resolutions than can be achieved in court. Even in those cases where mediation is not immediately successful, it typically will cost the parties about the same as a deposition in terms of time, effort, and resources. However some circumstances strongly favor mediation over other forms of dispute resolution. The dispute needs to be resolved quickly. The parties will benefit from maintaining a working relationship after the dispute is resolved.