The Linctus of Choosing a Mediator – Part 2

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Types of Mediation

Facilitative Mediation

In the 1960s and 1970s, there was only one type of mediation being taught and practised, which is now being called “Facilitative Mediation.”[1]  This involves the mediator structuring a process to assist the parties in reaching a mutually agreeable resolution. The facilitative mediator does not make recommendations to the parties; rather he or she is skilled to facilitate an agreement or outcome mutually acceptable to both parties. The mediator is in charge of the process, while the parties are in charge of the outcome. The facilitative asks questions; validates and normalizes the parties, point of view. It also searches for interests underneath the positions taken by parties by assisting the parties in finding and analysing options for resolution.[2] Consequently, facilitative mediators want to ensure that parties come to agreements based on information and understanding. They hold joint sessions with all parties present so that the parties can hear each other’s point of view.[3]

The Evaluative Mediation:

Also known as directive mediation requires that the mediator would make formal recommendations to the parties as to the possible outcome of their issues.[4] Directive as the name implies simply means that the mediator structures the process and directly influences the outcome of the mediation.

Thus, evaluative mediation is a process created on settlement conferences held by judges. An evaluative mediator assists the parties in resolving by pointing out the weaknesses of their cases and envisaging what a judge or jury would be likely to do.[5] Flowing from the above, evaluative mediation in simple terms is a process which may include an appraisal or opinion by the mediator of the pros and cons of the cases and a foreshadowing of the likely outcome. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are mostly concerned with the legal rights of the parties, unlike the facilitative mediation that put the needs and interests of the parties first.

Consequently, evaluative mediation is based on the legal concepts of fairness. Evaluative mediators meet most often in separate meetings with the parties and their lawyers, practicing “shuttle diplomacy”.[6] They help the parties and attorneys evaluate their legal position and the costs vs the benefits of pursuing a legal resolution rather than settling in mediation.[7]  This method of evaluative mediation emerged in court-referred mediation-lawyers liaison with the court to choose the mediator. There is a hypothesis in this method that presupposes that the mediator has legal expertise in the utilitarian area of the dispute. Hence, due to the connection between evaluative mediation and the courts, most evaluative mediators are lawyers.

What parties must know before hiring a mediator

The above section was able to define meditation and the types of mediation that is obtainable. This section will try to do justice with the importance of hiring a mediator .

1. Lawyers and Judges

In most cases, it is not ideal to hire the professionals mentioned above, just because they are grounded with knowledge of the law does not make them an excellent candidate to settle the conflict. It is irrefutable that they can resolve a conflict, but the chances are unusually low.[8] On sporadic cases, a lawyer cannot stand neutral or non-judgmental. Why? The lack of a formal process in mediation can be quite challenging for a lawyer used to litigation, especially as mediation tends to focus on clients and also the training of a lawyer is entirely different from that of a mediator without a law background.[9] Also, hiring lawyers that are also doubling up as a mediator will be far more costly than hiring a trained mediator from another field of study[10]. Hence, it is an excellent choice for parties not to hire a judge or an attorney in conflict resolution since the results may not work in the parties favour.

2. Communication is Key

The most important gift a mediator should or can possess is communication. Conflicts can be quite complex at times and the need to hire a mediator who can actively listen- get vital information and insight on the nature of the disputes, i.e. the intention of the parties which then leads to the settlement is essential.[11] Also, the mediator must be able to communicate, inform the parties as to how they may formalise the agreement and the likelihoods for  enforcing the agreement.[12]

To achieve the aforementioned a mediator should be calm and ask open-ended questions which will enable the parties to reach an agreement.[13]  Thus resolving disputes in mediation will not be possible without active listening and communication from the mediator.

3. The relationship between Mediator and Party

 An integral part of mediation is the relationship between the mediator and the party. This is important because in the private meeting the party will have to be comfortable enough to open up to the mediator.[14] Although the mediator will open up the private session by reminding the parties that everything discussed in the private session is confidential and will not be revealed except with their permission or compelled by law.[15]  A mediator who does not connect with the party will lack empathy, which would make the party feel uncomfortable. And the issue of trusting the mediator becomes a problem which then affects the relationship with the party and will not yield to the fruition or end of the process.[16] Parties should not choose a mediator they don’t have a rapport with or don’t trust.

4. Cost of mediation

Cost is vital in mediation because parties to a conflict would not want to stretch beyond their limit. Abdullah stated that flexibility, cost-effectiveness and non-threatening features are the most important elements for settling disputes. [17] Thus Mediation costs could differ depending on the nature of conflict which in turn will determine how much the whole mediation will amount to or cost. Whereas some mediators would charge less than others and vis-vis.

5.   Availability of Mediator 

Disputes are impulsive; this is because it occasionally occurs or happens without our expectation for it.[18] Thus the mediator’s services would be required at any point in time- he or she should be ready to assist the parties whenever the need arises.[19] The schedules with the mediator should be addressed on time rather than being postponed. Parties should not wait longer than necessary before they can get the services of a mediator.

Conclusion

This work has been able to clarify the definition and meaning of the term ADR and mediation which falls squarely into its family. This work has also reached back into time and examined the need for ADR and mediation. Without any need to regurgitate what had earlier been written it is undoubtedly true that the failings of litigation were the resultant birthplace of mediation. This work equally extrapolates the fact that there is a variety of mediation as the difference between the facilitative process and the evaluative was made bare. Users should acquaint themselves with the differences and avail themselves of which processes they deem fit in their peculiar circumstances. The writer would consider the area that deals with the choice of mediator and the qualities to look for as an exemplary part of this work. This work critically analyses the qualities that a competent mediator should possess and have done justice to this cause. The work assumes that the potential user would be informed to make a wise choice.

Hence, an important aspect of participating in mediation as this work has depicted is that it affords the parties an opportunity to generate a creative solution to their dispute and outcomes achieved are tailor-made to fit the outcome needs of the parties. Meaning that parties most often abide by their settlement agreements as they perceive them to be fair.

Bibliography

Legislations

Arbitration Act of 1996.

Civil Procedure Act of 1996.

Civil Procedure Rules 1998.

Commercial Arbitration Rules and  Mediation Procedures 2013

Europen Code of Conduct for Mediators 2004

Secondary Sources

Books

Blake S, Browne J, Sime S, A Practical Approach to Alternative Dispute Resolution (2nd ed, Oxford University Press 2012) Pg 28

Boulle L, Nesic M, Mediator Skills and Techniques: Triangles of Influence, (Haywards Heath: Bloomsbury Professional, 2010)

Bercovitch J, Kremenliuk V, Zartman I. W, The SAGE Handbook of Conflict Resolution (Los Angeles (Calif: London: Sage 2009)

Julian Lew, Loukas Mistelis, Stefan Kroll, Comparative International Commercial Arbitration (Kluwer Law International  2003)Pg 1

Penny Brooker, Mediation Law: Journey through Institutionalism to Juridification (Routledge Taylor & Francis Group London and New York 2013) Pg 1 -2

P.C Rao, William Sheffield (Eds), Alternative Dispute Resolution, What it is and how it works (The International Centre for Alternative Dispute Resolution, Universal Law Publishing Co.Pvt.Ltd 1997) Pg1-7

Stephen Goldberg, Frank Sander, Nancy Rogers, Sarah Cole, Dispute Resolution Negotiation, Mediation, Arbitration and Other Processes (6th Edition, Wolters Kluwer Law & Business 2012) Pg 4.

Mackie, Karl, A Handbook of Dispute Resolution: ADR in Action (London: Routledge in association with Sweet & Maxwell, 1991)

Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation (Jossey-Bass, 1994).

William L. Ury, Jeanne M. Brett and Stephen B. Goldberg, Getting Disputes Resolved (Jossey-Bass, 1988)

Journals and Articles 

Baker M, Rogers J, Edge M (Eds), Norton Rose Fulbright (International arbitration report 1 2013).

Arthur L. Marriott, ADR Abroad, Procedural reform encourages dispute resolution in the English Courts.( Dispute Resolution Magazine 7 Disp. Resol. Mag 2000-2001)

Nolan-Haley J, Mediation: The New Arbitration.” (2012) 17 Harv Negot L Rev Pg 61

Mohammed Aminuddin Haji Abdullah, An Investigation of the Development of Mediation in the UK Construction Industry (A Thesis Submitted to the University of Manchester for the Degree of Doctor of Philosophy in the Faculty of Engineering and Physical Sciences 2015) Pg 48

Rock EM, ‘Mindfulness Mediation, the Cultivation of Awareness, Mediator Neutrality, and the Possibility of Justice.’ (2005) 6(2) Cardozo J Conflict Resol 347

Leonard L. Riskin, Mediator Orientations, Strategies, and Techniques, Alternatives to the high cost of litigation 111 (1994).

Lisa Parkinson, The Place of Mediation in the  Family Justice System, 25 Child & Fam. L. Q. 200 (2013) (HeinOnline)                                                                         

Samuel J. Imperati, Mediator Practice Models: The Intersection of Ethics and Stylistic Practices in Mediation, 706 Willamette Law Review 33:3, Summer 1997.

Sharon Press, Alternative Dispute Resolution(ADR):A Critical Review of the Recent Literature (14 Just Sys.J.257 1991)

James A. Readey, Alternative Dispute Resolution- A Trial Lawyer’s  Primer, 53 Insurance. Counsel Journal. 308 (1986) (HeinOnline)

Jonathan Hyman, Swimming in the Deep End: Dealing with Justice in Mediation (2005) 6Cardozo Journal of Conflict Resolution 19

Websites

Allan & Amy Baron, 5 things to ask before hiring a Mediator (Baron Law  & Mediation, LLP 2016)<www.baronlawmediation.com > accessed 14th January 2019

Zena Zumeta, Styles of Mediation: Facilitative, Evaluative and Transformative Mediation (2000)

<http://mediate.com/articles/zumeta.cfm> accessed  8th January 2019

Diane Cohen, Evaluative Mediation  (Mediate.com 2011)

<www.http://mediate.com/ articles/CohenDbI20110321.cfm> accessed  1st February 2019

Europen Code of Conduct for Mediators 2004

accessed 12th February 2019