Which Mediation Style Is Right For Your Dispute?
When parties involved in a serious conflict want to avoid a court battle, a trained mediator tries to help the parties find common ground using principles of collaborative, mutual-gains negotiation. On the surface, mediation processes may look similar, but in fact, mediators follow different approaches depending on the type of conflict they are aiming to resolve. Before selecting a mediator, consider the various styles and types of mediation that are available to help resolve conflict. Mediators typically conduct their mediations based on their own mediation style.
While many have heard of three or four "mediation styles," there are actually seven distinct "types" of mediation that are most commonly used to quickly resolve conflict.
In facilitative mediation or "traditional mediation," an experienced mediator attempts to facilitate negotiation between the parties in conflict. During this type of mediation, mediators try to not vocalize their own views regarding the conflict at hand and aim to keep their thoughts hidden. They do not give their opinions as to what is right or wrong but instead, make suggestions for resolution. Oftentimes in facilitative mediation, the law is secondary to the needs, wants, goals, and interests of the disputing parties. The mediator helps the clients fashion a result that works for them and their dispute as opposed to what the law might say or what others have done. Instead of making recommendations or imposing decisions, the mediator highly encourages the parties to reach a solution voluntarily by exploring each other’s deeper interests.
Although mediation is categorized as a completely voluntary process, in certain states or counties, it can be mandated by a court that is interested in promoting a speedy end to the conflict and cost-efficient settlement. Seemingly an efficient idea, court mandated mediation has a downside: the odds of settling through court-mandated mediation are lower than during voluntary mediation. This is a direct result of parties going through the motions of mediation, rather than aiming to reach a resolution. If parties on both sides see the benefits of engaging in the court ordered process, settlement rates are much higher.
Standing in direct contrast to facilitative mediation is evaluative mediation, a type of mediation in which mediators offer a “no-nonsense” approach to resolution. Instead of focusing primarily on the underlying interests of the parties involved, evaluative mediators may direct settlement negotiations by discussing the legal merits of the dispute and expressing opinions to the parties directly. This type of mediation is based on the law and the facts. Evaluative mediation is most useful when the parties are pressed for time, or when there is an uneven power dynamic, such as with divorces or corporate cases. 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. They maintain most of the control throughout the mediation process, and they are the most vocal about each party’s strengths and weaknesses.
In transformative mediation, the mediators take the opposite approach of evaluative mediators. Instead of maintaining total control during the mediation process, transformative mediators support conflict resolution by handing control over to the involved parties. By empowering each party, transformative mediators create the time and space for both sides to express their emotions, find common ground over personal issues, agree with one another, and heal and preserve their relationship. This type of mediation works best when both parties are willing to work together to resolve the dispute. They do so by making suggestions, recommendations, and expressing opinions about strengths and weaknesses of each party’s position. This type of mediation style is most helpful in custody or parenting disputes, employment disputes, and other disputes wherein parties will have to maintain an ongoing relationship. During this process, the mediator more focused on helping the parties transform their relationship as opposed to reaching an agreement.
Transactional Mediation: The sole goal of transactional mediation is to reach an agreement using a traditional negotiation style and leveraging the mediator as a settlement director. This style involves “shuttle” diplomacy, where the mediator meets with each party privately and "shuttles" back and forth with each side. Often, transactional mediation requires some aspects of facilitation and evaluation.
In med-arb, a mediation-arbitration hybrid, parties first reach agreement on the terms of the process itself. Unlike most mediations, they typically agree in writing that the outcome of the process will be binding. Next, the parties attempt to negotiate a resolution to their dispute enlisting the help of a mediator. If the mediation ends in an impasse, or if issues remain unresolved, the process isn’t over. The parties then move on to arbitration. The mediator in turn assumes the role of arbitrator (with proper qualifications of course) and render a binding decision quickly based on either on the case as a whole or on the unresolved issues. Alternatively, a different pre-selected arbitrator can take over the case after consulting with the mediator.
In arb-med on the other hand, a trained, neutral third party hears disputants’ evidence and testimony in an arbitration and writes an award. At this time, the arbitrator does not share it with the parties. The parties attempt first to mediate the dispute, and if the parties fail to reach an agreement in mediation, the award is unsealed and the previously determined award is binding. This process removes the concern about the misuse of confidential information, but keeps pressure on the parties to reach an agreement. It is wise to note that in this resolution process, the arbitrator/mediator cannot change their written award based on new insights gained during the mediation.
It is important to note that different types of mediation are not mutually exclusive. A mediator may use one style exclusively or may conduct mediations leveraging two or more different types/styles. Some identify this as adaptive mediation. For example, a facilitative mediator may be asked to become evaluative or directive during the mediation or the mediation may turn transactional. Before hiring a mediator, take some time to understand the different styles/types of mediation and make an informed decision as to the type of mediator you are seeking.
If you have any questions about the Pacific ADR team, or their mediation styles, please contact us at: firstname.lastname@example.org