Evaluative mediation is focused on providing the parties with an evaluation of their case and directing them toward settlement. During an evaluative mediation process, when the parties agree that the mediator should do so, the mediator will express a view on what might be a fair or reasonable settlement. The Evaluative mediator has somewhat of an advisory role in that s/he evaluates the strengths and weaknesses of each side’s argument and makes some predictions about what would happen should they go to court. Facilitative and trans formative mediators do not evaluate arguments or direct the parties to a particular settlement.
Facilitative mediators typically do not evaluate a case or direct the parties to a particular settlement. Instead, the Facilitative mediator facilitates the conversation. These mediators act as guardian of the process, not the content or the outcome. During a facilitative mediation session the parties in dispute control both what will be discussed and how their issues will be resolved. Unlike the transformative mediator, the facilitative mediator is focused on helping the parties find a resolution to their dispute and to that end; the facilitative mediator provides a structure and agenda for the discussion.
Transformative mediation looks at conflict as a crisis in communication. Success is not measured by settlement but by the party’s shifts toward (a) personal strength, (b) interpersonal responsiveness, (c) constructive interaction, (d) new understandings of themselves and their situation, (e) critically examining the possibilities, (f) feeling better about each other, and (g) making their own decisions. Those decisions can include settlement agreements or not. Transformative mediation practice is focused on supporting empowerment and recognition shifts, by allowing and encouraging deliberation, decision-making, and perspective-taking. A competent transformative mediator practices with a micro focus on communication, identifying opportunities for empowerment and recognition as those opportunities appear in the parties’ own conversations, and responding in ways that provide an opening for parties to choose what, if anything, to do with them.
Mediation with arbitration
Mediation has sometimes been utilized to good effect when coupled with arbitration, particularly binding arbitration, in a process called ‘mediation/arbitration’. The process begins as a standard mediation, but if mediation fails, the mediator becomes an arbiter.
This process is more appropriate in civil matters where rules of evidence or jurisdiction are not in dispute. It resembles, in some respects, criminal plea-bargaining and Confucian judicial procedure, wherein the judge also plays the role of prosecutor rendering what, in Western European court procedures, would be considered an arbitral (even ‘arbitrary’) decision.
Mediation/arbitration hybrids can pose significant ethical and process problems for mediators. Many of the options and successes of mediation relate to the mediator’s unique role as someone who wields no coercive power over the parties or the outcome. The party’s awareness that the mediator might later act in the role of judge could distort the process. Using a different individual as the arbiter addresses this concern.
Online dispute resolution
Online mediation employs online technology to provide disputants’ access to mediators and each other despite geographic distance, disability or other barriers to direct meeting. Online approaches also facilitate mediation when the value of the dispute does not justify the cost of face-to-face contact. Online mediation can also combine with face-to-face mediation to allow mediation to begin sooner and/or to conduct preliminary discussions.
Conciliation sometimes serves as an umbrella-term that covers mediation, facilitative and advisory dispute-resolution processes. Neither process determines an outcome, nor do both share many similarities. For example, both processes involve a neutral third-party who has no enforcing powers. One significant difference between conciliation and mediation lies in the fact that conciliators possess expert knowledge of the domain in which they conciliate. The conciliator can make suggestions for settlement terms and can give advice on the subject-matter. Conciliators may also use their role to actively encourage the parties to come to a resolution. In certain types of disputes the conciliator has a duty to provide legal information. This helps ensure that agreements comply with relevant statutory frameworks. Therefore conciliation may include an advisory aspect.
Mediation is purely facilitative: the mediator has no advisory role. Instead, a mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.
Both mediation and conciliation work to identify the disputed issues and to generate options that help disputants reach a mutually satisfactory resolution. They both offer relatively flexible processes. Any settlement reached generally must have the agreement of all parties. This contrasts with litigation, which normally settles the dispute in favor of the party with the strongest legal argument. In between the two operates collaborative law which uses a facilitative process where each party has counsel.
A counselor generally uses therapeutic techniques. Some techniques, such as a particular line of questioning, may be useful in mediation. But the role of the counselor differs from the role of the mediator. The list below is not exhaustive but it gives an indication of important distinctions:
- A mediator aims for clear agreement between the participants as to how they will deal with specific issues. A counselor is more concerned with the parties gaining a better self-understanding of their individual behavior.
- A mediator, while acknowledging a person’s feelings, does not explore them in any depth .A counselor is fundamentally concerned about how people feel about a range of relevant experiences.
- A mediator focuses upon participants’ future goals rather than a detailed analysis of past events. A counselor may find it necessary to explore the past in detail to expose the origins and patterns of beliefs and behavior.
- A mediator controls the process but does not overtly try to influence the participants or the actual outcome. A counselor often takes an intentional role in the process, seeking to influence the parties to move in a particular direction or consider specific issues.
- A mediator relies on all parties being present to negotiate, usually face-to-face. A counselor does not necessarily see all parties at the same time.
- A mediator is required to be neutral. A counselor may play a more supportive role, where appropriate.
- Mediation requires both parties to be willing to negotiate. Counseling may work with one party even if the other is not ready or willing to participate.
- Mediation is a structured process that typically completes in one or a few sessions. Counseling tends to be ongoing, depending upon participants’ needs and progress.
Early Neutral Evaluation
The technique of Early Neutral Evaluation (ENE) provides early focus in complex commercial disputes, and, based on that focus, offers a basis for sensible case management or a suggested resolution of the entire case in its very early stages.
In early neutral evaluation, an evaluator acts as a neutral person to assess the strengths and weaknesses of each of the parties and to discuss the same with parties jointly or in caucuses, so that parties gain awareness (via independent evaluation) of the merits of their case.
Parties generally call on a senior counsel or on a panel with expertise and experience in the subject-matter under dispute in order to conduct ENE.
Binding Arbitration is a more direct substitute for the formal process of a court. Binding Arbitration is typically conducted in front of one or three arbitrators. The process is much like a mini trial with rules of evidence, etc. Arbitration typically proceeds faster than court and typically at a lower cost. The Arbiter makes the ultimate decision rather than the parties. Arbiter’s decisions are typically final and appeals are rarely successful even if the decision appears to one party to be completely unreasonable.
In litigation, courts typically impose binding decisions on the disputing parties. Courts in some cases refer litigants to mediation. Mediation is typically less costly, less formal and less complex. Unlike courts, mediation does not ensure binding agreements and the mediator does not decide the outcome.
While mediation implies bringing disputing parties face-to-face with each other, the strategy of “shuttle diplomacy”, where the mediator serves as a liaison between disputing parties, also sometimes occurs as an alternative.
This is where the mediator separates (maintaining confidentiality) all participants and face-to-face asks concrete questions to clarify or move the process along. The mediator serves as a liaison between disputing parties, however mediator’s neutrality is always maintained.
Selecting a Mediator
A mediator is a professional who is trained in helping people resolve disputes. When selecting a mediator, choose someone who is:
- knowledgeable about the subject matter and the procedures of the court system.
- trained in mediation through a certified program; and
As with any profession, word of mouth is your best source. The internet has recently become the best advertising tool for persons looking for local mediators.
As your mediator I will listen to your concerns. If you are too shy to express yourself, it is my job to help balance the power so all will be heard.