Not all conflicts are created equal. Nor are the mediation processes used to successfully resolve them. In fact, a critical role of a trained, third-party neutral is to carefully review the circumstances of a specific problem and select the most effective style to be used to solve it. While most all mediations benefit from a core group of values—voluntary participation, confidentiality, and self-determined agreement by the parties—the mediation models themselves can differ greatly in process, style and outcome.
In brief, there are three styles that may be considered the most common, including: Evaluative Mediation, Facilitative Mediation and Transformative Mediation.
This style is often used when mediating civil litigation matters or issues that focus on monetary assets and legal rights. The main goal of Evaluative Mediation is to reach an agreement and avoid trial.
In Evaluative Mediation, parties and their respective attorneys spend a majority of their time in separate rooms or in “caucus,” with the mediator shuttling back and forth between parties. Because Evaluative Mediation uses a “position-based” approach, the mediator often spends time focusing on bringing out the strengths and weaknesses of the parties’ positions, so that parties begin to understand the basis for settlement. With this style, a mediator may also spend considerable time helping the parties weigh evidence, judge credibility, allocate burden of proof or apply relevant case law. Mediators may also be asked make formal or informal suggestions for the parties to consider and help parties comprehend the alternative of not reaching resolution, including how a judge or jury might decide their case.
Sometimes referred to as “assisted negotiation,” Facilitative Mediation is commonly used in mediation of divorce, custody and parenting time matters. This style is particularly effective when parties are relatively amicable or can at least be in the same room long enough to work out an agreement. The goal of this style of mediation is creating a mutually beneficial agreement.
Generally, Facilitative Mediation involves both joint sessions with the parties and mediator, as well as individual caucus meetings between one party (and his or her attorney, if represented) and the mediator. The mediator is responsible for the framework of the mediation agenda and focuses on an interest-based approach to gathering the information needed to reach agreement. The book, “Getting to YES,” describes how an interest-based approach differs from a position-based approach,
“Interests motivate people; they are the silent movers behind the hubbub of positions. Your position is something you have decided upon. Your interests are what caused you to decide.”
As mediators facilitate a discussion to realize the true motivations of the parties, they are able to bring out mutual interests, multiple ideas to meet those interests, and the parties’ own, best solutions. The process allows for creative solutions, focusing on more than just a legal evaluation.
School, churches and families working through divisive issues can benefit greatly from Transformative Mediation. The general goal is to repair relationships and help the parties understand the other parties’ positions. Essentially, the mediator helps the parties reshape their conflict into a new story or agreement that all parties can live with.
The Transformative Mediation Institute describes this style of mediation as “an approach to conflict intervention that places the principles of empowerment and recognition at the core of helping people in conflict change how they interact with each other.”
Predominantly accomplished through joint sessions or talking circles, the parties, rather than the parties’ attorneys, have major influence and input on the outcome.
The good news: with a wide variety of cases, there is room for variety in mediation processes. Thus, as a mediator becomes versed in the various approaches, he or she may begin to use a “tool-box approach” combining working strategies from each of the three widely used models.