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Styles of mediation identified by academia
Over the last 50 years academics have agonised about styles of mediation. This has no connection with process or area covered or professional qualification.
These have been categorised as:
Facilitative Mediation
Here, the mediator concentrates on assisting the parties in reaching a mutually agreeable resolution. He works gently, in asking questions; validating and rationalising each party’s point of view.
He will search for unstated interests and prejudices and look for ideas and values outside the range of those considered by a party at the start. He will understand and explain the position taken by the conflict party - without commenting on its legal effect.
The facilitative mediator will not advise a party, nor make recommendations to the parties as to a particular course of action. He will certainly avoid offering suggestions as to the likely outcome of a claim if the dispute should lead to a court proceeding.
He will hold joint sessions with both parties present so that the parties can hear each other's points of view, but also “shuttle” between the parties separately. If lawyers are present, he will want the parties to have the major influence on decisions made, rather than the lawyers.
Facilitative mediators prefer the original mediation philosophy in which volunteer mediators were not required to have particular expertise in law or the underlying substance of the dispute.
Evaluative Mediation
Evaluative mediation is the name that academics have applied to a more legalistic approach to mediation whereby the mediator is usually a lawyer and is less likely to hesitate to assess the case of each party from a legal viewpoint and more likely to knock heads together in his determination to obtain a satisfactory outcome.
Evaluative mediators meet most often in separate meetings with the parties and their attorneys, practicing shuttle diplomacy. In such a meeting, the mediator will point out the weakness of each case, and may even predict what a judge might order.
He is concerned with the legal rights of the parties rather than considering their interests and wishes. As a result, this emphasis on cost and law tends to result in outcomes that reflect those issues.
Please don’t misunderstand us here. A mediator who prefers the evaluative style is not about to tell his clients what to decide. He is simply a step or two nearer to being a figure of authority than being a mere counsellor.
Evaluative mediation has taken centre stage in Europe and the United States over the last 30 years. That may result from the increasing influence of judges in mandating and sometimes demanding, that parties should go away and find a mediator, before returning to court as a last resort. That result of that, predictably, is that the respective lawyers instruct a lawyer-mediator and control the mediation process.
The mediator chosen is then a lawyer selected for his knowledge of the subject area, or a non-lawyer expert with deep understanding of the relevant industry. However, we believe the essential problem with evaluative mediation is that it ignores the necessity for a good mediator to start with a basic understanding of human nature and the ability to both listen and explain in a manner suitable to his mediation client. There is no point in sharing an understanding of the origin of the universe if the actual conflict is about entitlement to holiday pay when on an assignment. A mediator must be a chameleon, not a tiger.
Transformative Mediation
You may also come across the term transformative mediation. This seems to us to be a product of academia rather than of practising mediators. The emphasis and supposed differentiating characteristics of transformative mediation relate to the goal of moving a party’s expectations and horizon, so as to accept solutions that had not previously been considered - or at least not considered in sufficient depth. In transformative mediation, the parties control the direction of the mediation and the mediator follows.
Transformative mediation appears to promote what any competent mediator is trying to do in any event. It is likely that the interest and naming of transformative mediation has arisen in order to point out defects in evaluative mediation while avoiding the impression of weak facilitative mediation. Supporters have simply noted that lawyers are a determined bunch of people, whose personalities, training and experience all direct them to legal outcomes.
Our philosophy
How we use facilitative mediation
Our service is based on facilitative mediation. Like most UK mediators, we believe that the best resolution comes from the participants and not from the mediator. As soon as we might start to evaluate and assess, we begin to advise and at that point a mediator may be starting to move away from the impartiality which is so essential to the mediation process.
However, that basic proposition in no way prevents the mediator from encouraging you to consider all the options which might be available to you. Mediation is a sophisticated service whereby the mediator will nudge the participants into consideration of a smorgasbord of possibilities as well as helping the participants to understand the shape of an outcome which will satisfy both of them. We care only to give you the opportunity to make a better deal than you might have expected.
As a business client, you want to know what would happen if you had to issue or defend a claim in court. You want to resolve the conflict as fast as possible. Although of course each party has his/her personal approach and personal feelings, it is likely that the parties are most concerned with the financial outcome. You want to be able to get on with your life. That is what we strive to give you.
Of course, life is about more than business. Your conflict may be about shares in a family business; the value of one partner having given up a career to bring up the children; a loan to a nephew; a will or intestacy, an argument with a neighbour, or prejudice at work. Relationships and personal feelings are often at least as important as money. Getting it settled depends on the skill and experience of the mediator in bringing the parties together.
Your mediator will try to unravel how you feel, from his/her very first contact with you. He/she needs to know the extent to which anger, sympathy, revenge, hurt, pride, determination and instinct all influence not only how you present the facts behind your dispute but also your likely approach to achieving settlement.
Our priorities in helping you
Our mediator, Andrew Taylor, is a lawyer. That is a good start. But it is only the start. Throughout the mediation process (and not merely at the mediation meeting), a mediator must constantly consider and balance a number of factors. Among the most important are to:
- maintain complete impartiality;
- create a “level playing field”; human nature is such that there is always a disparity of strength of personality is between the parties. A good mediator has the social skills to balance that disparity.
- provide an atmosphere where both Participants feel absolutely comfortable in the negotiation;
- encourage each participant to explore what he/she wants and identify the reality of what he/she seeks;
- encourage each participant to stand in the shoes of the other of them and identify what might easily be conceded in order to help that other, without great effect on him/herself.
The alternative is always the court process
Both your mediator and the participants however have, at the back of their minds, the proposition that your dispute might end up in court if you do not come to an agreement.
Mediation is certainly not about providing an assessment to the parties together as to “who might win”. However, the mediation process is unlikely to be successful if one party holds out for a solution which would be thrown out of court. Sometimes, the mediator has to be prepared to help a participant to see his/her position in the cold light of day. That is why it is often so important for the mediator to be able to speak privately and separately to each participant.
When participants have taken legal advice, our mediator will avoid questioning that advice or providing information about court procedures and cost. If, on the other hand, the participants need to know about litigation procedures in the round, the mediator will be prepared to provide basic information to the participants together. He has guided clients in court often enough to know all about the mounting cost and uncertainty. Outside the law profession, he has also personally experienced the cost of litigation in time and money and understands the stress, anger and self-questioning which arises.
However, he will never give legal advice, despite having done so for law clients thousands of times over many years. To do so would contravene his neutrality.
The Mediator as a chameleon
The Mediator will steer the mediation process pro-actively. He will explore the motivations, assumptions and knowledge of each party. He will constantly look for variations and alternative outcomes for each detail of the discussion so that each party can enlarge his view of the conflict and may be able to recognise avenues to settlement that had not previously been considered.
This mediator is also acutely aware that he is not a technopedia nor even a legalopedia. He does not pretend to be an expert on every subject that might come before him for mediation. Fortunately, the fact that your business is based on science and technology does not necessarily mean that you need a mediator who is also a professional in your subjects.
Compare with the court system. Even in the Technology and Construction Court, the extent of the technical knowledge of a judge is quite limited. Much the same applies to a mediation. If your mediator needs professional technological help, he will obtain your permission to appoint whatever experts he requires in order to assist him.
The terms of your final agreement are drawn by you, the participants. This is usually a manuscript process. Sometimes such an agreement. may consist in 50 words but more usually is somewhat longer. The Mediator will discourage legal terminology, ambiguity, and points which may not be achievable.
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