One of the great strengths of non-court-based dispute resolution lies in its versatility and adaptability. Yet many practitioners are slow to adapt, often holding tightly to the approach in which they were trained without fully engaging with emerging developments. As court delays lengthen and litigation becomes ever more costly, parties increasingly seek clarity about legal outcomes. The market should be alert to these demands.

Facilitative mediation is not the only model

Traditionally, mediation in England and Wales has followed a facilitative model, where the mediator guides the process without expressing views on the merits or likely outcomes. By contrast, in many other common law jurisdictions, such as the United States, evaluative approaches are more prevalent. Providers such as JAMS — described as the "world’s largest ADR provider" with over 500 mediators, including many former judges —frequently incorporate evaluation into the mediation process.

As the demand grows for dispute resolution processes that combine legal insight with practical guidance, the case for offering evaluative options within civil practice becomes increasingly persuasive.

Lessons from the family law FDR and the rise of the private FDR (pFDR)

Financial Dispute Resolution (FDR) hearings in the family courts offer a useful precedent. A judge reviews the papers, hears brief submissions, and provides an indication of the likely outcome to support settlement discussions. In response to pressure on court resources, private FDRs (pFDRs) have developed, in which retired judges or senior practitioners are jointly instructed to fulfil this role.

In a typical pFDR, the evaluator, having read the court papers and listened to counsel's submissions, offers an opinion as to likely outcome during the morning session The parties then negotiate in the afternoon, with the evaluator remaining available to provide further guidance if required. While the evaluator does not act as a facilitator in the traditional sense, there is no reason why they should not provide additional input, with the parties’ agreement, to assist in overcoming deadlock.

The role of neutral evaluation in civil cases

In civil matters, neutral evaluation refers to a confidential, non-binding professional opinion on the likely outcome of a case, based on the available evidence and legal submissions. It is not adjudication, and the evaluator has no authority to impose a decision. The process is entirely consensual and upholds the principle of party autonomy.

A new approach: A two-stage civil model

Following the precedent of the pFDRs, below is a model we propose for a structured two-stage process for civil disputes, consisting of evaluation in the morning and negotiation in the afternoon — either with continued involvement from the evaluator or with a transition to a separate facilitative neutral.

Stage one – morning: neutral evaluation

  • The evaluator reviews the relevant documents and hears brief submissions
  • A non-binding, reasoned opinion is provided—either jointly or privately, as agreed
  • The evaluation addresses evidential strengths, legal issues, costs, and procedural risks
  • The purpose is to introduce a degree of realism and encourage a reassessment of expectations

Stage two – afternoon: negotiation

  • The parties enter into negotiations, assisted by their legal representatives
  • The evaluator remains available to reinforce earlier guidance or provide additional clarification, if invited
  • Alternatively, a mediator may be brought in to support dialogue
  • Any further evaluative input must be pre-agreed, carefully timed, and delivered with discretion
 

Why this model works

This approach is particularly well-suited to commercial and professional disputes, where parties benefit from structured, credible insight into the likely outcome of litigation. It preserves party autonomy while addressing common psychological barriers to settlement, including:

  • Overconfidence bias – overestimating the strength of one’s own case
  • Anchoring – becoming fixed on an unrealistic figure
  • Loss aversion – resisting compromise for fear of appearing to concede
  • Reactive devaluation – dismissing proposals solely because they originate from the other side

Evaluators play a vital role in addressing these issues by asking open questions, testing assumptions, and exploring alternatives.

Finally, the cost savings, both financial and emotional, can be enormous.

Facilitative mediation remains appropriate for many cases, particularly those involving emotional or relational considerations. However, in disputes that require clear legal analysis and a more structured approach, the two-stage model — neutral evaluation followed by negotiation —offers a compelling alternative.
 

It empowers parties through informed guidance while preserving the consensual nature of settlement. Though not suitable for every case, where appropriate, it can deliver quicker, fairer, and more durable outcomes.

 

Spenser Hilliard is a barrister and commercial mediator, who has taught mediation skills extensively both nationally and internationally.

Spenser chairs the Bar Council Alternative Dispute Resolution Panel and is a member of the Judicial Alternative Dispute Resolution Liaison Committee.