When the Lawyer Is Also the Mediator: Evaluative Mediation and Collaborative Law—A Comparative Analysis of Approaches to Resolving Family Disputes

Family dispute resolution is a complex and sensitive area of law that calls for alternative approaches capable of effectively addressing the emotional, relational, and financial dimensions of family conflicts. In practice, courts often lack the resources necessary to respond efficiently and effectively to the wide range of family disputes brought before them. Against this backdrop, mediation and Collaborative Law—known in Brazil as Collaborative Practice—have emerged as promising alternatives to the traditional adversarial model of litigation.

For the purposes of this article, written from the perspective of a family lawyer with over ten years of experience handling litigation requiring not only procedural strategies but also interdisciplinary approaches, the focus will be on evaluative mediation. In this model, the mediator plays a more active role, offering carefully considered assessments throughout the process, expressing opinions where appropriate, and suggesting possible paths forward based on legal and technical considerations to assist the parties in making informed decisions. This differs from the more widely known facilitative mediation, in which the mediator acts solely as a neutral facilitator, encouraging communication and negotiation without proposing solutions or expressing opinions, while helping the parties develop their own agreements.

The reason for this focus is our understanding that evaluative mediation can significantly enhance the use of Collaborative Practice, particularly when lawyers are committed to helping their clients reach sustainable agreements. Grounded in a prior commitment to avoid litigation, and often supported by a multidisciplinary team, Collaborative Practice seeks to achieve carefully structured, effective, and lasting agreements for parties who are willing to embrace this approach.

Both evaluative mediation and Collaborative Practice have become increasingly prominent in family law because they promote party autonomy, focus on interests rather than positions, preserve family relationships, and encourage durable solutions. The purpose of this article is not to determine which approach is superior, but rather to compare their distinctive features, advantages, and challenges, while highlighting the broad range of intelligent alternatives available for resolving family disputes.

To do so, it is first necessary to examine the role of evaluative mediation and Collaborative Practice in family dispute resolution, as well as the unique contribution that an experienced family lawyer can bring to these processes.

Collaborative Practice

Collaborative Law emerged in the United States during the late 1980s through the work of two pioneering lawyers, Stuart Webb and Ron Ousky, together with family psychologist Pauline Tesler, who sought to transform the way family disputes—particularly divorce—were handled.

Dissatisfied with the emotional, financial, and procedural costs of traditional litigation, Webb and Ousky envisioned a more constructive approach to resolving family conflicts. Joined by Tesler, they promoted a model based on a commitment not to litigate, complete transparency in the exchange of information, and cooperation rather than confrontation.

Their shared vision gave rise to what is now known internationally as Collaborative Law, or Collaborative Practice in Brazil—a fundamentally different approach to legal dispute resolution.

Its central objective is to provide an alternative to traditional litigation, in which both the parties and their lawyers commit themselves to working collaboratively toward mutually satisfactory solutions.

The collaborative process begins with the signing of a participation agreement, through which everyone involved undertakes to exchange information openly and honestly, work together to develop solutions, and avoid unnecessary litigation. This allows the parties to retain greater control over the dispute resolution process while preserving family relationships and fostering cooperation, respect, and mutual understanding. Rather than adopting adversarial positions, the emphasis is placed on identifying shared interests and developing creative, individualized solutions. This pioneering approach has since inspired professionals around the world and is now widely recognized as a more humane and effective means of resolving legal disputes, particularly in family matters.

It is hardly surprising that many of the core principles of Collaborative Practice closely resemble those found in mediation. Both approaches value party autonomy and self-determination, encourage cooperation instead of confrontation, focus on interests and needs rather than rigid positions, and recognize the importance of each party's experiences and emotions.

The same dissatisfaction with adversarial litigation that inspired the founders of Collaborative Practice also motivates many mediators. As Jacques Lacan observed, anxiety never lies. It challenges professionals to reinvent themselves as conflict resolvers whose role extends beyond the limitations of the courtroom, empowering families to find more meaningful and sustainable solutions.

Evaluative Mediation

The concept of mediation derives from the Latin word mediatio, meaning intervention or intermediation. Throughout history, mediation has been used in many cultures as a means of resolving disputes and promoting peace.

In the legal context, mediation is an alternative dispute resolution (ADR) process involving the intervention of an impartial third party—the mediator—whose role is to assist the parties in reaching mutually acceptable solutions. Mediation seeks to improve communication, foster mutual understanding, identify underlying interests, and facilitate consensual agreements.

Several different models of mediation have developed over time.

As noted above, evaluative mediation involves a neutral mediator who not only facilitates communication but also offers objective assessments regarding the strengths and weaknesses of each party's position, helping them understand the legal and practical implications of different options.

Facilitative mediation, by contrast, emphasizes party empowerment. The mediator creates a safe and neutral environment in which participants can openly express their concerns and interests while exploring possible solutions without receiving evaluations or personal opinions from the mediator.

Other well-established models include narrative mediation, which focuses on helping the parties reconstruct the narratives surrounding the conflict; transformative mediation, which seeks to strengthen the parties' relationship through mutual recognition and empowerment; and interest-based mediation, which assists participants in identifying underlying interests that may not initially be apparent.

In truth, there is no universal rule establishing that facilitative mediation is preferable to evaluative mediation—or vice versa—in family law. The most appropriate model depends entirely upon the characteristics of the dispute and the needs of the parties.

Facilitative mediation is often particularly valuable in family disputes because it allows individuals to retain ownership over decisions affecting their personal and family lives. It encourages open dialogue and enables parties to develop agreements tailored to their unique family circumstances while strengthening communication and future relationships.

Nevertheless, evaluative mediation may be more appropriate in complex cases involving highly polarized disputes, significant power imbalances, or situations in which the parties require an objective legal assessment of their respective positions.

Perhaps the most important point is that these different approaches are not mutually exclusive. Unlike litigation strategies, which often require lawyers to choose between competing procedural paths, mediation models may be combined according to the specific needs of each case. Likewise, Collaborative Practice naturally intersects with many of these approaches, particularly where multidisciplinary collaboration is involved.

Multidisciplinarity refers to the integration of professionals from different fields—including psychology, social work, law, education, finance, and other disciplines—to provide a comprehensive response to family conflicts.

The participation of professionals with different areas of expertise enables the parties' emotional, legal, social, and psychological needs to be addressed more effectively.

This integrated approach is particularly valuable in family law, where emotional relationships and financial realities are often inseparable from the legal issues themselves.

In our view, the richest opportunities for multidisciplinary collaboration arise precisely within alternative dispute resolution processes, especially evaluative mediation and Collaborative Practice.

Multidisciplinarity as an Essential Tool in Conflict Resolution

Within mediation, multidisciplinary teams may include mediators, lawyers, therapists, social workers, financial specialists, and other professionals whose expertise assists the parties in making informed decisions and developing comprehensive solutions.

Collaborative Practice similarly relies upon multidisciplinary cooperation. Alongside collaborative lawyers, parties may engage family therapists, communication coaches, financial neutrals, child specialists, and other experts who work together to improve communication, address emotional and financial concerns, and facilitate durable agreements.

The involvement of professionals from different disciplines reflects the reality that family disputes cannot be fully understood—or resolved—through legal analysis alone. It provides parties with broader support while helping them make informed decisions based on a more complete understanding of their circumstances.

Drawing upon expertise from different fields to build individualized solutions is therefore one of the defining strengths shared by both mediation and Collaborative Practice.

Advantages and Challenges of Evaluative Mediation in Family Law

Despite its potential benefits, evaluative mediation has attracted significant criticism. Some scholars argue that a stronger emphasis on evaluation and legal guidance may undermine party autonomy and equality during negotiations by allowing the mediator's perspective to exert excessive influence.

Professor John Lande, for example, has suggested that evaluative mediation may risk limiting genuine self-determination by encouraging parties to align their decisions too closely with the mediator's assessment.

Similarly, Lela Porter Love argues that evaluative mediation may increase polarization where mediators express opinions that appear to favour one party, thereby undermining the collaborative atmosphere required in sensitive family disputes.

Other critics contend that excessive focus on legal outcomes may overlook the emotional and relational dimensions that are central to family conflicts.

Professor Lynn D. Wardle, for example, argues that mediation should place greater emphasis on family narratives, interests, and relationships rather than concentrating primarily on legal rights. He also raises concerns regarding mediator neutrality, party autonomy, and the need to safeguard children's interests.

These criticisms deserve careful consideration and contribute to improving evaluative mediation by encouraging a better balance between legal guidance and party empowerment.

At the same time, evaluative mediation offers important advantages that may also benefit Collaborative Practice.

Where parties struggle to reach agreement, evaluative mediation can provide realistic legal guidance by explaining how similar issues have been addressed by the courts. This enables parties to make informed decisions while understanding both the legal risks and the likely consequences of different options.

Technical legal expertise may also improve the quality and durability of agreements. A collaborative lawyer, for example, may assist parties in developing arrangements that differ from prevailing judicial practice but nevertheless better reflect their family's particular circumstances while remaining legally defensible.

When exercised with caution and sensitivity, evaluative mediation helps parties understand both opportunities and risks without compromising mediator neutrality. Providing legal information and identifying potential obstacles is fundamentally different from favouring one party over another.

The practical experience of mediators and collaborative lawyers who have extensive litigation backgrounds should therefore not be underestimated. Rather than conflicting with mediation principles, such experience may enrich the process by helping parties better understand the legal framework within which their agreements will ultimately operate.

Likewise, collaborative lawyers draw upon their litigation experience to draft realistic, durable agreements that reflect both legal requirements and the parties' practical needs while working alongside multidisciplinary professionals to develop creative, individualized solutions.

It is therefore entirely possible for a lawyer to advocate zealously on behalf of a client while, in another professional capacity, serving impartially as an evaluative mediator. Both roles share a commitment to honesty, transparency, responsibility, and efficiency in conflict resolution.

A Successful Example

One of the best-known examples of this dual approach is Nancy J. Cameron, whose career combines both Collaborative Practice and mediation.

Dissatisfied with the limitations of traditional litigation, Cameron devoted her professional life to promoting peaceful conflict resolution. She firmly believed that people are capable of resolving their own disputes when provided with appropriate guidance and a safe environment for communication.

Over time, she expanded her work beyond mediation to become a collaborative lawyer, combining mediation skills with legal expertise to provide families with a comprehensive and integrated approach to dispute resolution.

Interestingly, Cameron herself primarily practices facilitative mediation, emphasizing active listening, trust-building, and collaborative communication. Her work demonstrates that mediation and Collaborative Practice are not competing models but complementary approaches that can reinforce one another.

Her legal knowledge enables her to guide families through complex legal issues while preserving the fundamental values of cooperation, mutual respect, and informed decision-making.

Nancy Cameron's career illustrates how mediation and Collaborative Practice can work together to transform conflict into constructive dialogue, preserving relationships while empowering families to make informed decisions about their future.

Conclusion

Both mediation and Collaborative Practice offer valuable alternatives to adversarial litigation in family law. While they differ in structure and professional roles, they share a common commitment to dialogue, party autonomy, transparency, and durable solutions.

Collaborative Practice requires the parties and their lawyers to commit contractually to resolving disputes outside the courts through interest-based negotiation. Evaluative mediation, by contrast, relies upon a neutral mediator who facilitates negotiations while, where appropriate, providing objective legal assessments to assist informed decision-making.

Both approaches prioritize the parties' interests rather than rigid legal positions, encouraging individuals to participate actively in shaping their own solutions.

A collaborative lawyer who is also qualified as an evaluative mediator occupies a particularly valuable position. By combining negotiation skills, legal expertise, and mediation techniques, such professionals can facilitate constructive dialogue while helping parties understand both their legal options and the practical consequences of their choices.

This integrated approach enriches family dispute resolution by combining the strengths of Collaborative Practice with the structured guidance offered by evaluative mediation, resulting in more efficient, sustainable, and satisfactory outcomes.

Nancy J. Cameron's professional trajectory demonstrates that it is possible to integrate these complementary roles responsibly while remaining faithful to the principles underlying each discipline. Her work serves as an inspiring example of how legal professionals can expand their practice beyond traditional litigation and contribute to more humane, collaborative, and effective methods of resolving family disputes.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. If you require guidance regarding your specific circumstances, please consult a qualified legal professional.

References

(i) TAVARES, Ana Carolina Brochado Teixeira. Mediação familiar e direito colaborativo: propostas para solução de conflitos no Direito de Família. Revista de Direito Privado, v. 56, p. 311–339, 2014.

(ii) Tesler, P., & Thompson, P. (2006). Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation. American Bar Association.

(iii) WATANABE, Kazuo. Mediação de Conflitos: Fundamentos e Práticas. São Paulo: Atlas, 2011.

(iv) NAMUR, Cássio; REZENDE, Cynthia; FERREIRA, Leonardo (Eds.). Mediação Familiar: Uma Abordagem Multidisciplinar. São Paulo: Atlas, 2017.

(v) SAID, Samira Jorge. Mediação: Um Paradigma Interdisciplinar. São Paulo: Millennium Editora, 2008.

(vi) FERREIRA, Vanessa Henriques. Direito Colaborativo: Teoria e Prática. São Paulo: Fórum, 2017.

(vii) LOPES, Camila Novaes. Mediação e Direito Colaborativo: A Construção do Diálogo na Solução de Conflitos. São Paulo: Método, 2018.

(viii) Lande, J. (2011). Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money. Ohio State Journal on Dispute Resolution, 26(3), 613–665.

(ix) LOVE, Lela Porter. "The Role of Collaborative Law in Resolving Family Law Disputes." Family Law Quarterly, Vol. 42, No. 2 (2008), pp. 277–297.

(x) BENJAMIN, Robert. The Mediator's Handbook. Jossey-Bass, 2008.

(xi) WARDLE, L. D. (2002). "A Critique of Evaluations of Family Mediation." Journal of Dispute Resolution, 2002(1), 37–79.

(xii) https://www.nancy-cameron.com/

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Por Lívia Possi

Lívia Possi holds a law degree from Mackenzie Presbyterian University. She is a specialist in Family and Succession Law from the Higher School of Advocacy of the Brazilian Bar Association – São Paulo Section (ESA/OAB-SP). She is a full member of the Permanent Research Group on Family and Happiness at the Mackenzie School of Law, the Brazilian Institute of Family Law (IBDFAM), the Brazilian Institute for Civil Liability Studies (IBERC), the Brazilian Institute of Collaborative Practice (IBPC), and the Family Law Committee of the São Paulo Bar Association (OAB-SP). She completed the Master en Droit Privé, des Enfants et Personnes Vulnérables at the Université Catholique de Lyon and is currently pursuing a joint Ph.D. between the Université Jean Moulin Lyon III, under the supervision of Professor Hugues Fulchiron, and the Faculty of Law of the University of São Paulo (USP), under the supervision of Professor Eduardo Tomasevicius. She is a lawyer trained in Collaborative Practice and mediation, with specialization in family conflict resolution through the ICFML – Institute for the Certification and Training of Lusophone Mediators, and also serves as a legal opinion writer and lecturer.

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Footnotes

1. The distinction between efficiency and effectiveness is important. Efficiency relates to the optimization of resources, whereas effectiveness concerns achieving the intended outcome. It is possible to be efficient without being effective if the desired result is not achieved. Conversely, effectiveness implies attaining the intended objective regardless of the level of efficiency with which it is accomplished.

2. French psychoanalyst Jacques Lacan explored the concept of anxiety in relation to the fundamental lack inherent in the human condition and to unconscious desire. According to Lacan, anxiety arises when individuals confront this constitutive lack. He regarded anxiety as playing a central role in psychoanalytic analysis because it reveals the work of the unconscious and may serve as the starting point for the analytical process. By examining anxiety, individuals can uncover the hidden meanings underlying their symptoms and gain access to deeper dimensions of desire. Lacan developed these ideas in several works, most notably in The Seminar, Book X: Anxiety (1962–1963).