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:
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 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.
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.
Understanding the mediation participants
We give our clients what they want. Whether what we do is facilitative or transformative or evaluative is not important. We care only to give you the opportunity to make a better deal than you might have expected.
We believe you want the Mediator’s understanding of the issues and of the wishes and points of conflict that stand in the way of agreement. You want a fast and efficient process providing a fair outcome.
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.
If your problem relates to tying up the money issues after separation, you are probably aware that you really have to come to some agreement because the litigation option is just too awful to consider. At the same time you are probably suspicious, cautious and just a little frightened that you will get it wrong. You can relax. Just get your position statement sorted out and the mediator will guide both of you through the tunnel to your new separate lives.
Of course, life is about more than business and divorce. 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; or an inter-generational partnership. Relationships and personal feelings are more important, at least to one party, than money. Getting it settled depends on the skill and experience of the mediator in bringing the parties together.
In almost every dispute which comes to mediation, what the parties most want is to just get it settled, kill the stress and get on with their lives. Getting it settled depends on the skill and experience of the mediator in bringing the parties together. Killing the stress depends upon achieving a settlement. But the settlement has to be one which the parties are happy with.
Assessing the background
Your mediator will try to unravel and understand 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.
In every mediation, the first thing we do is to assess whether we are looking at a level playing field. If not, we know we have to level it. We do not tolerate bullying or aggressive behaviour. When a party has difficulty in expressing him/herself, we are infinitely patient and supportive.
At the same time we are constantly aware of the importance of our neutrality. We will always avoid any impression that we are judging a party or his/her strategy or position. This is not something we can explain explicitly to the parties. Instead we gradually make clear to both parties that they will achieve a better outcome if . . . .
The alternative is always the court process
Both the Mediator and the participants however have, at the back of our 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 one of the parties, to see his 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 asked, the Mediator will certainly be happy to provide guidance on court procedures and cost. The Mediator 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 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 usually drawn by our mediator in the form of a memorandum of understanding. Our mediator prefers to leave you to decide how you want to finalise that agreement. There are different ways in which you can treat it.
Would you like to set up your mediation now?