Mediation can best be described as a “facilitated negotiation” in which parties attempt to resolve a conflict between themselves. It is not designed as an adversarial process. It uses a third party neutral to assist in the negotiation process, rather than a third party decision maker to determine an outcome.
Although mediation historically had not involved attorney advocates, lawyers have come to play a very important role in current uses of mediation. Mediation advocacy is an art, just as much as courtroom advocacy is an art. While an advocate in a courtroom needs to establish a reason for the finder of fact to lean in their direction, the advocate in a mediation needs to find a way for the opposing party to consider an outcome different than the one that other party most desires. Skillful collaboration with the mediator can make that advocacy job easier.
Mediation does not necessarily seek compromise. It’s much more subtle than that. Compromise frequently arises in a distributive bargaining setting, a zero-sum exchange, one in which there is a fixed amount of something that needs to be divided between the participants. In a compromise, the participants inevitably are forced to give up something they want in order to complete the negotiations. Although mediation can be useful in a distributive bargaining setting, it really seeks to escape from the zero-sum exchange scenario and instead seeks to expand options so that all of the participants can get what they really want. In mediation, with the assistance of the parties and their advocates, a skilled mediator will search for the interests that underlie the parties’ positions. Once those interests have been identified, then the mediator can assist the parties to develop options and alternatives by which all of their core desires have a chance to be met.
Successful mediation begins with selection of an appropriate mediator for the particular conflict.
Understanding Mediator Styles
There are four primary mediator styles: Facilitative, Evaluative, Directive and Transformative. All mediators use the same basic processes, but with different emphases, and for much different purposes. Facilitative and transformative styles trace their roots back to traditional social uses of mediation; evaluative and directive mediation styles reflect more recent evolutions as the process has been embraced by governments and the courts.
The two most common style of mediation are Facilitative and Evaluative. A Facilitative mediator strives to create the framework within which the parties themselves can craft an agreement. The Facilitative mediator emphasizes use of the mediation process while encouraging the parties to be directly involved in exploring settlement options that they can create. An Evaluative mediator works inside the framework to assist parties to understand the possibilities and consequences of various agreement alternatives, as well as being more intimately involved in suggesting possible terms of agreement.
Transformative mediation seeks to deal with healing the relationships involved in a conflict, while Directive mediation seeks primarily to find an immediate solution to an immediate dispute without any deep concern about the relationship of the parties involved in the conflict. A transformative mediator may be most able to assist in resolving conflicts between people who need to continue to interact with one another. A directive mediator may be the one who can assist in conflicts in which the parties are strangers who will be unlikely to cross paths again but who have a dispute that they are unable to resolve themselves.
Just as you don’t go to the same restaurant and order the same food each time you are hungry, so you shouldn’t order up the same mediator every time you consider mediation as an option in seeking to resolve a conflict.
Consider a real life example: Two neighbors who had served on their association board together, and whose children had played together, and whose families had socialized together, suddenly found themselves in a conflict involving a tree and its roots. Bringing the association into the conflict was a serious escalation of the conflict after the neighbors exchanged harsh words during their own informal attempt to deal with the conflict. The association’s attorney hired a local retired judge to convene a mediation when the board decided that it couldn’t deal with the dispute itself. That mediator, using his best directive techniques, helped the parties to come to an understanding of the consequences to each if the dispute ended up in the court to which it appeared headed. As a result the offending tree was cut down. But the owner of the removed tree then found that the parking in front of his home was no longer adequate, and that he needed to park his truck in front of the adjoining property…. You get the picture. Within months of the first mediation the board again found itself dealing with another conflict alleging that the association needed to do something to control parking pursuant to its governing documents.
During a second mediation, using a Transformative/Evaluative mediator, a more complete story was developed. It was learned that one of the parties’ children had taken something from the neighbor’s home and had been caught in the act. Instead of reporting the offending conduct to the child’s parents and allowing them to deal with the event, the victimized parent took it upon himself to ‘punish’ the neighbor’s child. That child’s parents, once they learned of the uninvited punishment, confronted the other in rather harsh terms. In retaliation, the neighboring children were banned from the victim’s property and were no longer allowed to play with the victim’s own children. When a toy later became entangled in the offending tree, but couldn’t be retrieved without the cooperation that was refused, the tree became the surrogate focus of the neighbor conflict. In turn the tree was punished and the cycle of escalation continued.
The Directive mediator ‘solved’ the tree dispute when it was pointed out that the tree’s owner would probably lose in court and become liable for thousands of dollars of damage to the common wall. But that mediation did nothing to deal with the rest of the conflicts between the parties. As a consequence one inconvenience deserved another, tit-for-tat, and the truck suddenly found a new parking spot. The Evaluative mediator, during the second mediation, uncovered all of the underlying tension between the families so that they were able to see what was going on between them, that they had more to gain from restoring their prior relationships than by continuing to escalate the conflict between them, and encouraged mutual apologies from both so that the past hurts could be overcome. Once the emotional element was overcome, the rest of the issues could be dealt with more easily and completely.
Understanding the Role of the Mediator
Virtually all mediators follow a similar process. The mediation is convened, the mediator makes some opening comments, the parties are encouraged to explain their positions to one another, the mediator assists the parties to negotiate their differences, and if the mediation is successful an agreement is entered into. Individual mediators, using their own styles and techniques, approach each of those steps in the process differently. But whatever their styles all ethical mediators adhere to certain basic tenants: impartiality, confidentiality, and party self-determination.
The requirement of impartiality permeates all mediator styles, and should not differ regardless of the approach of a mediator. If a mediator feels that he or she cannot be impartial in a particular situation, or if any of the parties doubt the impartiality of the mediator, the mediator should and normally will decline a mediation engagement. Confidentiality is a similarly universal expectation in mediation. Most states have laws or regulations that provide for evidentiary exclusion of statements made during and documents prepared for mediation. Parties need to be able to trust that things they say during negotiations, and particularly during caucuses with the mediator, will not be used against them. If any mediator breaches that confidentiality, he or she should not be considered for any future assignments. Ultimately, self-determination is what distinguishes mediation from most all other forms of conflict resolution in use today. The parties are free to develop solutions that fit the conflict and their circumstances without regard for technical legal remedies that might be available in another forum. And the parties are always able to walk away from mediation without a solution if one cannot be found, thereafter turning the conflict over to a judge or someone else to resolve. The role of the mediator will vary, depending upon their particular style, when it comes to the applying these principles
Facilitative mediators tend to encourage participants to find their own self-interest and to devise their own solutions with minimal direct mediator intervention. The Facilitative mediator assumes that his or her principal mission is to clarify and to enhance communication between the parties in order to help them decide what to do. This mediator style assumes that the parties are intelligent enough to understand their own needs and situations, and are able to work with their counterparts so long as it can be done safely and with minimal confrontation. The process is assisted by techniques such as the use of open ended questions to help identify the undercurrents of the conflicts between the parties. Facilitative mediators tend to ask ‘why’ questions, and to follow them up with ‘have you considered’ options for discussion. Using additional techniques such as rephrasing statements to make them less hurtful, and reframing perceptions so that the parties can better understand one another’s motives, the Facilitative mediator works to improve communication among the parties. As the process progresses he or she promotes a better understanding of the issues, focuses the parties on their interests and seeks creative problem-solving, including creative solutions outside the legal normative box, in order to enable the parties to reach their own agreements and resolutions to their problems. Transformative mediation follows the same model as does facilitative, except the focus often tends to revolve around solutions that might allow for a relationship to improve and continue into the future.
Evaluative mediators tend to see their role as more interventive and active. The Evaluative mediator assumes that the participants want and need him or her to provide some guidance as to the appropriate grounds for settlement and that he or she is qualified to give such guidance by virtue of training and experience. The evaluative process tends to be more ‘rights based’, seeking to help the parties to recognize their legal positions and find ways to allow for their respective rights to be recognized. Instead of asking open-ended questions, the evaluative mediator is more likely to ask pointed questions that specifically raise issues or imply answers. He or she may engage in reality testing, inquiring whether a participant really believes that their desired outcome is likely to be forthcoming either in mediation or in an adversary proceeding. They often will provide an evaluation of the parties’ positions, based on their own background and experience, in order to encourage one or both parties to reassess their positions. And in order to move the mediation along toward closure they may suggest various options or outcomes that would allow for resolution. By training and inclination, attorney-mediators tend to lean more toward use of evaluative mediation style. Retired judges tend to use an even more aggressive form of directive mediation style in their mediator roles. They are generally seen as authority figures who have a deep understanding of how a particular dispute might be resolved if it finds itself in a courtroom. From that position of authority directive mediators tend to avoid use of general sessions in favor of caucuses, tend to be more challenging in their own personal evaluation of parties’ positions, and have been known to tell each side – during caucus in the same mediation – that their respective positions have no merit, all in an effort to persuade the parties that their own self interest will be best served by following a course of conduct suggested by the mediator.
How to Find the Right Mediator
Many parties assume that attorney mediators are more effective in resolving conflict than are non-attorney mediators. As with many assumptions, this one is not necessarily accurate. A recent study of mediators in a court-annexed mediation setting found that there was no statistical difference in settlement rates as between attorney-mediators and non-attorney mediators. To the extent that there were noticeable differences in outcomes, non-attorney mediators were slightly more effective in small value cases, while attorney mediators were slightly more effective in highly technical cases. The non-attorney mediators were more willing to spend time working on the participants concerns while the attorney-mediators were more able to address specific issues in dispute. When looking for the right mediator for your dispute, think about the underlying issues and interests then pick a mediator whose experience and style will most closely match the needs of the parties.
Most urban centers have some kind of community mediation service. Check with your local mediation center to determine whether it has a community association mediation program. Community programs tend to use a facilitative model for their mediation services and tend to offer rather lower cost services.
Most courts now use mediation as an integral part of their case management and disposition efforts. Those courts often have panels of mediators who have demonstrated their qualifications before being allowed to handle court-connected cases. Check with the court or its website for a list of those qualified mediators. Court program mediators tend to rely heavily on the evaluative model of mediation.
Most large urban centers have professional organizations that provide arbitration and mediation services, frequently relying heavily on retired judges and attorneys. NAM-ADR, JAMS, AAA and ADR Services are some of the organizations that have offices in multiple locations across the United States. The professional organizations tend to use evaluative to directive mediation styles, and are generally more expensive than mediators in other settings.
Many bar associations maintain lists of attorneys and the services that they offer. With some exceptions those attorneys who offer mediation services do so as a small part of their practice and may or may not have much in the way of mediation training.
Many CAI chapters maintain lists of allied professionals and vendors. Several of those chapters have mediators who regularly advertise their services through the chapters and have discount mediation programs for their member community associations.
Don’t forget the internet and the yellow pages – yes they still exist. If someone has made the investment in a website or a yellow page ad, it is fair to believe that the person has made a dedication to mediation as a profession.
Unless you have had prior experience with a mediator, or have spoken with someone who has first-hand experience with that person, always ‘interview’ a mediator before you nominate him or her. Don’t just ask them about their fees and charges, but ask questions about their predominant styles. Ask about their training and experience. Inquire as to whether they make extensive use of general sessions during a mediation, or whether they rely heavily on caucuses. Ask for references.
There is no “right” or “wrong” type of mediation style. Effective mediators can be helpful in almost any setting, regardless of their predominant style. But resolution of different types of dispute can be enhanced by the selection of the best style of mediator to match the parties and the conflict. Mediation advocates can assist with the resolution of the disputes by understanding the goals of mediation and the role of the mediator, then adjusting their approach to conflict resolution to match the forum in which resolution is sought.
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