Many people have heard of mediation and understand that a neutral mediator helps parties resolve disputes without going to court. What people may not realize is that mediation is not a one-size-fits-all approach. There are different mediation approaches and styles, so if you are considering mediation, it is a good idea to ask a potential mediator to describe their approach or style. Mediation approaches lie on a spectrum from Evaluative to Facilitative to Transformative.
- Evaluative. An evaluative mediator is one who provides the parties with his or her evaluation of what a court would provide in their situation and seeks to encourage the parties to accept that result. An evaluative mediator would likely meet with each side separately to convey the weaknesses of their case and to encourage compromise. This approach might be used in a case that has been in litigation and may be close to trial — for example, the McCourt divorce case. There has been significant legal analysis and discovery already completed, and the parties want a quick resolution or else they will proceed to trial. There is not the time or the inclination to see if the parties can communicate constructively with each other. Often, former judges are engaged as evaluative mediators. Parties may be more likely to follow their mediator’s recommendations based on their judicial experience.
- Facilitative. A facilitative mediator is one who focuses on helping the parties to (1) exchange information, (2) understand their needs and interests, (3) understand the law, and (4) brainstorm and evaluate options for resolution. A facilitative mediator may or may not meet separately with the parties. Whether meeting separately or together, a facilitative mediator does not try to push the parties into a settlement. This approach works best when people come to mediation before they have started any legal action, or if there has been only minimal legal action such as a consultation with an attorney. In these cases, the mediator will seek to help the parties to communicate constructively and to take control of the outcome of the dispute.
- Transformative. A transformative mediator is focused primarily on intervening to assist the parties in changing their communication dynamic. The transformative mediator generally meets with parties together rather than separately. The transformative mediator does not provide information about the law, but the parties could learn about the law from individual attorneys if they so desired. This approach might be used if the parties seek primarily to improve their communication dynamic, as opposed to resolve an isolated dispute.
In practice, many mediators have a primary approach or style, but may adopt elements of other approaches depending on the situation. My approach is primarily Facilitative. I seek to help the parties work out their own solution, focusing on making sure they have the information the need to make informed decisions, and helping them communicate constructively. I generally meet with parties together because I find there is real value in having the parties hear each other directly, rather than through me as a messenger. In certain circumstances I would meet separately with the parties — for example, if after reasonable efforts working together, we are still at impasse. But I do not seek to force people to accept a resolution as I believe strongly that self-determination leads to the best results.
