When parties involved in a serious conflict want to avoid a court battle, there are types of mediation can be an effective alternative. In mediation, a trained mediator tries to help the parties find common ground using principles of collaborative, mutual-gains negotiation. We tend to think mediation processes are all alike, but in fact, mediators follow different approaches depending on the type of conflict they are dealing with. Before choosing a mediator, consider the various styles and types of mediation that are available to help resolve conflict. 7 Types of MediationFacilitative Mediation In facilitative mediation or traditional mediation, a professional mediator attempts to facilitate negotiation between the parties in conflict. Rather than making recommendations or imposing a decision, the mediator encourages disputants to reach their own voluntary solution by exploring each other’s deeper interests. In facilitative mediation, mediators tend to keep their own views regarding the conflict hidden. Court-Mandated Mediation Although mediation is typically defined as a completely voluntary process, it can be mandated by a court that is interested in promoting a speedy and cost-efficient settlement. When parties and their attorneys are reluctant to engage in mediation, their odds of settling through court-mandated mediation are low, as they may just be going through the motions. But when parties on both sides see the benefits of engaging in the process, settlement rates are much higher. Evaluative Mediation Standing in direct contrast to facilitative mediation is evaluative mediation, a type of mediation in which mediators are more likely to make recommendations and suggestions and to express opinions. Instead of focusing primarily on the underlying interests of the parties involved, evaluative mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations. Evaluative mediation is most often used in court-mandated mediation, and evaluative mediators are often attorneys who have legal expertise in the area of the dispute. Transformative Mediation In transformative mediation, mediators focus on empowering disputants to resolve their conflict and encouraging them to recognize each other’s needs and interests. First described by Robert A. Baruch Bush and Joseph P. Folger in their 1994 book The Promise of Mediation, transformative mediation is rooted in the tradition of facilitative mediation. At its most ambitious, the process aims to transform the parties and their relationship through the process of acquiring the skills they need to make constructive change. Med-Arb In med-arb, a mediation-arbitration hybrid, parties first reach agreement on the terms of the process itself. Unlike in most mediations, they typically agree in writing that the outcome of the process will be binding. Next, they attempt to negotiate a resolution to their dispute with the help of a mediator. If the mediation ends in an impasse, or if issues remain unresolved, the process isn’t over. At this point, parties can move on to arbitration. The mediator can assume the role of arbitrator (if he or she is qualified to do so) and render a binding decision quickly based on her judgments, either on the case as a whole or on the unresolved issues. Alternatively, an arbitrator can take over the case after consulting with the mediator. Arb-Med In arb-med, another among the types of mediation, a trained, neutral third party hears disputants’ evidence and testimony in an arbitration; writes an award but keeps it from the parties; attempts to mediate the parties’ dispute; and unseals and issues her previously determined binding award if the parties fail to reach agreement, writes Richard Fullerton in an article in the Dispute Resolution Journal. The process removes the concern in med-arb about the misuse of confidential information, but keeps the pressure on parties to reach an agreement, notes Fullerton. Notably, however, the arbitrator/mediator cannot change her previous award based on new insights gained during the mediation. E-mediation In e-mediation, a mediator provides mediation services to parties who are located at a distance from one another, or whose conflict is so strong they can’t stand to be in the same room, write Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a chapter in the book Advancing Workplace Mediation Through Integration of Theory and Practice. E-mediation can be a completely automated online dispute resolution system with no interaction from a third party at all. But e-mediation is more likely to resemble traditional facilitative mediation, delivered at a distance, write the chapter’s authors. Thanks to video conferencing services such as Skype and Google Hangouts, parties can now easily and cheaply communicate with one another in real time, while also benefiting from visual and vocal cues. Early research results suggest that technology-enhanced mediation can be just as effective as traditional meditation techniques. Moreover, parties often find it to be a low-stress process that fosters trust and positive emotions. Have you used any of these types of mediation and did you find them effective? Let us know in the comments below.
MeyersonxMeyerson B.E. (2010). The Case against Treating Evaluative Mediation as the Practice of Law. In AAA Handbook on Mediation (2nd ed.). New York: JurisNet, p. 762. mentions a definition of evaluative mediation along the same lines:
BurnsxBurns S. (2001). Think Your Blackest Thoughts and Then Darken Them: Judicial Mediation of Large Money Damage Disputes. Human Studies, 24, 227-249. observed that “evaluative mediators” began with a joint session, then broke into separate caucuses and thereafter shuttled between the parties, selectively carrying information back and forth. In the typical initial session, each party was given the opportunity to state its case without interruption from the other. The issues raised in the parties’ briefs were discussed (implying that it was the norm for the mediators to require and read briefs). Mediators asked questions at this stage in order to clarify uncertainties and formulate the case in legal and practical terms. The mediators did not undermine either party’s case or exert pressure in the joint session. Those behaviours were reserved for, and characteristic of, the caucus sessions. The mediators “displayed neutrality” in the joint session.xHeisterkamp B.L. (2006). Conversational Displays of Mediator Neutrality in a Court Based Program. Journal of Pragmatics, 38, 2051-2064. Thus, mediator activity was organised to move the parties towards settlement, which meant identifying and overcoming “settlement obstacles”. The relevant approach, according to Burns, would come down to ignoring interest-based bargaining and searches for creative solutions, providing substantive assessments, discussing the law with the lawyers, displaying neutrality in joint sessions but exercising mediator influence in caucus and focusing on the positional bargaining of offers and counteroffers.xBurns S., (2001).Think Your Blackest Thoughts and Then Darken Them: Judicial Mediation of Large Money Damage Disputes. Human Studies, 24, 227-249. Parties sometimes request that neutrals assume a variety of roles. ‘Mixed processes’ abound: med-arb, mini-trials, summary jury trials and mediation and neutral evaluation. These mixed processes can address particular needs of a situation and can be very helpful. Mediators are not foreclosed from engaging in some other process or helping parties design a mixed process. Whatever the service being provided, however, it should be requested by the parties and accurately labelled. In addition, she points to where the possible downsides are:
Aaron comes to the conclusion that – given the inherent dangers of evaluation – this instrument ought only to be considered when absolutely necessary and, even then, with the utmost restraint and modesty. A necessity for evaluation will only exist when no other intervention to break an impasse can be imagined and the side effects of evaluation do not matter anymore, meaning that, otherwise, all is lost. She does not agree with Love that evaluation would have to be avoided in all events. She frames this as follows: In daily life, mediation is a flowing dynamic whereby the merging of one approach into another is not always clearly marked. Mediation ought not to become a rigid straightjacket. In this first Part, it has become clear that the notion of a ‘mediator’s proposal’ – whatever that may mean – is not a synonym for evaluative mediation nor an oversimplified perception of evaluative mediation, as we have seen. One definition of a mediator’s proposal is that
One common feature of evaluation in mediation and a mediator’s proposal is that both will have to be the ultimum remedium. Only at the very end, when there is nothing to be gained, when nothing is ventured and all will otherwise be lost because an agreement between the parties is certain not to happen, the mediator may consider to impinge upon the parties’ autonomy. In neither case – a mediator’s proposal or evaluation – ought the mediator to cross the line of party autonomy without their express consent. Mediation has always known many shapes and appearances, from meetings with tribe elders in the stone age to diplomatic masterpieces in the space age. After Roscoe Pound put alternative dispute resolution back on the agenda of practitioners in the legal field in the United States in conferences in 1906 and 1976,xTraum L. & Farkas B. The History and Legacy of the Pound Conferences. (2017) Cardozo Journal of Conflict Resolution, Volume 18:677, p. 677-698. mediation has developed strongly in the field of family law and employment law. The prevailing school which was developed – stimulated by the appearance of the school of interest-based negotiationxFisher R. & Ury W. (1981). Getting to Yes, Negotiating Agreement Without Giving In, first published in 1981.Arrow Books, London (Ed. 1987) – was that of facilitative mediation. Development, however, did not stop there. As GulliverxGulliver P. (1979). Disputes and Negotiations: A Cross-Cultural Perspective. New York and London: Academic Press, p. 227. already in 1979 observed:
I see ‘a tale of two or more mediators’ in the appearance of mediators who will, and mediators who will not, engage in the merits of the case, or do special things. This invites a not always simple response. My response: the observation of the core values is paramount. There is no objection against mediators changing roles, as long as this does not happen without the previously informed consent of the parties. MoberleyxMoberley R.B. (1997) Mediator Gag Rules: Is It Ethical For Mediators To Evaluate Or Advise? Aouth Texas Law Review, 38, 669, 669-678. had a point:
It is not uncommon that, in a relatively new field like mediation, there is some lack of clarity and a certain insecurity as to what the future will hold. Sociologist JarrettxJarrett B. (2009). The Future of Mediation: A Sociological Perspective. Journal of Dispute Resolution, ,Volume 2009, 2, p.62-63. – and in agreement with him, KawakamixKawakami M.T. (2020). The Mediation Disruption. A Path to Better Conflict Resolution through Interdisciplinary and Cognitive Diversity. Corporate Mediation Journal, 2, 35-39. – proffers that the eye ought to be on the diverse social forces that emerge in a developing field and on the combined potential of those forces. The variety of backgrounds of offerers of mediation services (psychologists, lawyers, accountants, doctors, engineers and other professions) and of preferences for approaches may cause confusion on the part of both mediators and their potential clients. This invites tension, now that all involved seek to distinguish themselves professionally. In turn, this will lead to increased formalisation and regulation, particularly where it comes to neutrality and independence. Institutionalisation can then be expected. In the end, specialisation will be the result, as is already occurring in many countries. This underpins the various approaches to mediation. It also confirms my opinion that mediation, as a recognisable phenomenon, can only exist when mediators join forces by underwriting the core values of mediation, rather than engaging in fruitless fights over working methods. Jarrett studied the field and found the following:
As recommended by Kawakami,xKawakami M.T. (2020). The Mediation Disruption. A Path to Better Conflict Resolution through Interdisciplinary and Cognitive Diversity. Corporate Mediation Journal, 2, 35-39. the field will (have to) continue improving and diversifying the pool of mediators who are able to handle complex mediations:
Or, as RiskinxRiskin L.L. (1996). Understanding Mediator’s Orientations, Strategies and Techniques: A Grid for the Perplexed. Harvard Negotiation Law Review, 1(7), 13. put it aptly:
To which I add my mantra: as long as the core values are observed and mediators, changing roles, do so only with the previously informed consent of the parties.
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