There are a number of mediation models available today. Be sure to discuss your options with any potential mediator, and be aware of the style he or she will use in your particular case.
A facilitative mediator helps the parties find a mutually agreeable solution. The mediator hears both parties’ points of view, asks questions to flesh out important details, and then often summarizes each party’s story to help ensure an accurate understanding for everyone. Sometimes, clients find that by simply having someone hear and acknowledge their story, their anger and hostility lessens, and they able to negotiate more effectively.
The job of the facilitative mediator is to facilitate the process by setting boundaries, and holding parties to them. For example, each party may agree not to interrupt the other, and not to use derogatory language or call the other names. Further, if tensions escalate, the mediator may caucus with each party separately for a short period, then ask that the parties return to the same room. Alternatively, the mediator may shuttle back and forth with the parties throughout the whole mediation if they cannot directly work together.
Although the facilitative mediator does help guide the process, he or she not offer advice or possible solutions to the parties. In addition, the facilitative mediator does not suggest possible resolutions to issues, or advise how the law or court might treat issues. Because facilitative mediators do not give legal advice, they need not be attorneys or other legal professionals.
It may be helpful in complex cases however, to use a facilitative mediator who is familiar with the issues in the particular area of dispute. For example, a mediator who is trained in family law may recognize when a power imbalance is present, and when it is too great to continue the mediation; and a mediator with a background in construction may have an easier time understanding terminology used by mediating parties whose dispute involves a building defect.
Some criticize facilitative mediation for being a slow process, and it is true that certain parties do need more guidance than a facilitative mediator can provide. Still, the facilitative model is the oldest and most popular style, and has worked for many disputing parties.
An evaluative mediator plays a role similar to that of a settlement conference judge—and in fact is often an attorney or retired judge. The evaluative mediator voices an opinion on the strengths and weaknesses of each party’s case, and how a court may rule on issues. The evaluative mediator looks at the case from a legal perspective, and discloses to the parties their rights according to the law. Each party and attorney then has the information to determine whether it makes more sense to settle or pursue each issue in court.
In evaluative mediation, the mediator may meet with the parties and their respective attorneys together, or the mediator may meet with the parties and their respective attorneys separately. The second model is beneficial in certain cases because it allows each party and his or her attorney to discuss options privately while the mediator is talking with the opposing side.
Alternatively, the evaluative mediator may work with two unrepresented parties. In this case, the parties come to their own conclusions based on the evaluative mediator’s insights and advice.
The evaluative model has been criticized for being coercive, and some have questioned the mediator’s qualifications to influence the process so heavily. It is important to choose an evaluative mediator who is unbiased and has the appropriate background. The right evaluative mediator can offer expertise that allows the parties to reach a fair and equitable settlement.
The goal of transformative mediation is for each party to become empowered and transformed. Both parties aim to recognize the other’s viewpoint. The transformative mediator meets with both parties together, not separately, because the parties (rather than the mediator) lead the process.
Although this style of mediation may be ideal for some cases, it has been criticized for lacking structure and for taking too long and/or not producing results. Because it is the newest style of mediation, time will tell how it is most effectively used.
Preparing For Effective Mediation
Preparing for mediation can lead to more effective results. Here are some tips for making the most of your mediation.
Try to choose a mediation location that is convenient and neutral, and meet at a time of day that is not too early, late, or close to another event. Mediations can take more time than planned, and it is important that all parties be able to remain focused. Ideally, both parties will be comfortable with the choice of mediator, and have confidence in his or her ability to remain neutral. If agreed upon, parties should provide a written overview of the case to the mediator before the actual mediation. On the day of mediation, parties should bring all documents supporting their case too.
Parties should be educated about the purpose of mediation—to reach a mutually agreeable solution to the dispute. Parties need to accept, however, that the process may not lead to a final resolution, and some issues may get resolved while others may remain outstanding. It is also important to know your bottom ahead of time, and be willing to re-evaluate that bottom line if new information comes to light during the mediation. For effective mediation, parties must remain cooperative, even if there is hostility between them.
During mediation, it is often wise to reveal information carefully. Additionally, during negotiations, it can be helpful to express delicate information to the other side through the mediator, who can soften the blow; it is often easier for someone to learn upsetting news from a neutral party.
Finally, take care to draft a clear and enforceable agreement. Describe the dates, times, and terms (especially payment terms) with particularity. A clear agreement is essential to preventing future misunderstandings and disputes.