Mediation is often misunderstood as a dispute resolution process because it is a more flexible than either arbitration or litigation. It relies on a neutral party (a mediator) helping the opposing parties come to an agreement, instead of imposing a solution on them. How mediators work with the parties can vary significantly so it is useful to think about which mediation style may be best for a particular dispute. Parties who might have otherwise rejected mediation may find that using a different style of mediation may make all the difference in achieving a successful resolution.
Generally, there are 3 main styles of mediation:
- In facilitative mediation, the mediator does not make recommendations or give advice. He/she typically holds joint sessions with the parties asking them questions and engaging in a conversation to understand their point of view and interests. The mediator’s goal is to help the parties come to a resolution based on information and understanding. The mediator is skilled at facilitating discussions but may not have substantive knowledge or expertise in the type of dispute involved.
- This type of mediation is similar to discussions during settlement conferences before the parties go to trial. The mediator takes a more directed approach, advising the parties about the strengths and weaknesses of their case and making recommendations. He/she meets with the parties separately and may also meet with their attorneys separately. Mediators typically have relevant legal expertise in the area involved in the dispute and the parties’ attorneys are involved in picking an appropriate mediator.
- Transformative mediation goes beyond facilitative. The goal is to empower the parties to come to their own resolution. The mediator helps them recognize each other’s needs, interests, values and points of view. The parties control both the process and the outcome and the mediator follows their lead.
Depending on the circumstances of the dispute, the parties’ relationship and willingness to work together, one type of mediation may be preferable to another.
Many attorneys prefer evaluative because of the benefit of having a neutral party provide a fair assessment of each parties’ position and direct them to a solution. However, it has been criticized as too heavy-handed and coercive. Facilitative and transformative may give the parties more power to craft their own solution, but also may take longer and result in fewer agreements. However, this varies with the type of matter and parties. Each method can be useful in the right situation. Furthermore, there is a spectrum. Mediators may vary their style depending on the dispute or they may blend styles. The important point is that the parties should talk with a potential mediator to understand their general style, so they can make a choice that makes sense for them.
ARS provides the only complete end-to-end online ADR process for both mediation and arbitration. We offer a vast array of highly skilled neutrals to meet the needs of any party or dispute. To learn more, contact us for a consultation.