Dispute Resolution Services (DRS) : DRS Processes : Mediation Styles

MEDIATION STYLES - EXPLANATION AND THOUGHTS
By CHRISTINE LEICK, DISPUTE RESOLUTION SERVICES

“Facilitative” Mediation

Webster defines “facilitation” as “to make easier,” and it is certainly the desire of every mediator to make the process easier for the parties.

Facilitative Mediation is the most traditional style of mediation. It is consistent with the definition of mediation in Rule 114.02(a)(7) of the Minnesota General Rules of Practice for the District Court as follows:

A forum in which a neutral third party facilitates communication between parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties.

The “facilitative” mediator typically exercises a strong influence over the mediation process, but does not attempt to control the outcome. S/he focuses on priorities and agendas, factual information, discussion of needs and options, and typically produces written reports.

“Directive” Mediation

An extremely facilitative mediator, may not intervene between the parties much at all. Thus the word “directive” can be used to describe a type of facilitative mediation in which the mediator is more involved in giving legal information (but not advice) and in directing the process.

Some may say that a directive mediator is less concerned about the relationship of the parties and more concerned about making progress toward settlement.  The directive mediator focuses the parties on reaching agreement much more quickly than the typical facilitative mediator. Mediators are likely to be more directive when they are mediating under a deadline, such as an upcoming trial date.
 
“Evaluative” Mediation

Webster defines the word “evaluate” as follows: “to determine or fix the value of, to determine the significance or worth of, usually by careful appraisal and study.”

The Rule 114 Code of Ethics includes Mediation Rule I, Self Determination. This rule provides as follows:

A mediator shall recognize that mediation is based on the principle of self‑determination by the parties.  It requires that the mediation process rely upon the ability of the parties to reach a voluntary, un-coerced agreement.  The primary responsibility for the resolution of a dispute and the shaping of a settlement agreement rests with the parties.  A mediator shall not require a party to stay in the mediation against the party’s will. 

However, the Advisory Task Force Commentary which accompanies this rulepermits the mediator to evaluate and assess the facts and law and provide notonly an evaluation, but also settlement suggestions.

The mediator may provide information about the process, raise issues, offer opinions about the strengths and weaknesses of a case, draft proposals, and help parties explore options.  The primary role of the mediator is to facilitate a voluntary resolution of a dispute.  Parties should be given the opportunity to consider all proposed options.  It is acceptable for the mediator to suggest options in response to parties’ requests, but not to coerce the parties to accept any particular option.

The purely “evaluative” mediator typically responds to the facts of the case and the parties’ discussions and/or arguments by suggesting how s/he (the mediator) believes that one or more matters should be resolved.

In Minnesota, Rule 114 separates the concepts of mediation and evaluation into two different forms of ADR. However, mediators, clients and attorneys frequently refer to the evaluative style of mediation.

“Transformative” Mediation

Webster defines “transformative” as “to change in character or condition.”

If the above styles are laid out on a continuum from the least amount of intervention to the most intervention, the transformative style would precede the facilitative style as typically involving the least intervention on the part of the mediator. In fact practitioners of transformative mediation, created by Baruch Bush and Joe Folger, would not describe transformative mediation as a style. Rather they refer to it as a framework.

Whereas other forms of mediation are based upon traditional conflict theories, such as competing rights or meeting needs with limited resources, transformative mediation is based upon the relational theory that conflict is a crisis in human interaction. The goal of the purely “transformative” mediator is to help people change the quality of their conflict interaction. S/he listens to the parties’ conversations, looking for opportunities to empower each party to move from a place of weakness to a place of strength. In addition s/he focuses on the movement from full self-absorption toward responsiveness to the needs of others. The parties control the process, as well as the outcome. Thus the transformative mediator is much less active than the “facilitative” or “evaluative” mediator.

My thoughts:

Current trends appear to separate mediation into distinct styles, and to identifying mediators as practitioners of a particular style. In all due respect to my colleagues who practice the above styles, I believe that none of these “styles” is sufficient on its’ own. Rather these “styles” are merely mediation techniques and each technique should be in the repertoire of every good mediator.

While the control over process as well as outcome, afforded to the parties by a purely facilitative mediator may be very attractive to certain clients, others may feel that they are not receiving enough assistance from their mediator. In my opinion, facilitative mediation will not meet all of the parties’ needs unless it includes transformative and evaluative techniques.

Transformative mediation may be the most spiritual form of mediation, and the truest generator of client self determination. But facilitative skills are needed to keep the parties on track, organize information, and memorialize agreements. All mediation, as least in the family area, should allow for and encourage healing – individually and between the parties. In addition, primary considerations in any mediation process are that no one is hurt and that the parties’ relationship gets better, or at least no worse.  Again, some facilitation is necessary to achieve this. It seems to me that, without the highest level of  transformative mediation skill, with the mediator allowing the parties to transform themselves while making few interventions, there is the potential for one or both parties to be emotionally attacked, and for the parties’ relationship to become more difficult. In addition to the inter-personal considerations,,this decline in the relationship may certainly make settlement more difficult.

Evaluation and suggestion can often lead to settlement. However, in my opinion these technique should be used only if all else fails. If they are used early in the process, or to the exclusion of other techniques, the parties’ are deprived of the opportunity to discuss their needs, explore settlement options, and reach agreement without the mediator’s judgment.  In addition, if an evaluative style must be adopted, it will be more effective after the parties have become comfortable with the mediator and are confident in the mediator’s neutrality. It is best used when the parties’ attorneys are present, since they can assist their clients in “evaluating” the mediator’s analysis, effectively responding to the mediator’s recommendations, and achieving final agreement. An evaluative mediation session is more like a settlement conference (with the third party neutral acting as a private “judge”) than it is like true facilitative mediation.

Back to DRS Processes | Back to Top