Understanding the Top 3 Styles of Mediation with ADR Times

Understanding the Top 3 Styles of Mediation with ADR Times

The styles of mediation available to mediators are like different tools, ready to be used when the situation calls for each or by preference. Likewise, a great advocate will have the knowledge to handle whatever style a mediator throws at them or even to know which style to request given the issue at hand. Finally, if a client understands what style a mediator uses, they will have the tools necessary to tailor their expectations and communicate effectively with the mediator and the other party or parties. This article will define each style of mediation, discuss the benefits and potential downfalls of each type, and outline the ways to be prepared for each style.

Evaluative Mediation

Common in court-mandated mediation, evaluative mediation is the first of the styles we will explore. It was the original style of mediation modeled after settlement conferences held by judges. Evaluative mediators focus on the rights of the parties and less so on the underlying interests driving their requests. This style allows the mediator to have control of the procedure of the mediation and to shape the outcome.

A mediator practicing evaluative mediation will:

  • Assess the issue at hand
  • Listen to the arguments from both sides
  • Give parties an evaluation of the issue, including the weaknesses in their arguments
  • Make predictions about the outcome of the case should it proceed to trial
  • Present a formal or informal recommendation for settling the case

Evaluative mediation is sometimes accompanied by shuttle diplomacy and caucuses, where the mediator moves back and forth between the parties in separate rooms. This can be helpful if there are power dynamics or animosity at play between the parties. Caucuses allow the mediator to shape the process and drive the mediation toward settlement. However, mediators practicing only through caucuses must be mindful of the risk it poses to neutrality and be extra careful to not skew one party’s viewpoint to broker a settlement. Evaluative mediators may often accomplish a settlement when all parties are in the same room as well because it allows the respective parties to hear the other point of view.

Trans-formative Mediation

The second style of mediation is trans-formative mediation. This style tends to run counter to evaluative mediation because its focus is on empowering the parties to come to an agreement. The mediator is in the room only to call attention to the needs, interests, values, and points of view of the other party. The goal of the mediation is also not settlement as much as it is to transform the relationship between the parties to create a new relationship. It focuses on restoring the disconnect the conflict has caused between the parties.

A mediator practicing trans-formative mediation will:

  • Refrain from giving an opinion on the strength or weakness of a party’s case
  • Encourage the parties to evaluate their own positions in relation to each other
  • Follow the lead of the parties both in the process and the outcome.
  • Strengthen the weakened parties
  • Restore a sense of self-determination, confidence, and control
  • Call the parties to be empathetic and to acknowledge one another
  • Act as a guide rather than an authority figure

In trans-formative mediation only the parties can represent their point of view and interests to the other, so the mediation will often take place only in joint sessions. Because this style is primarily driven by the parties, it tends to work best when the parties agree to work together to try and settle outside of court. A trans-formative mediation may not be possible for parties whose interests are in direct opposition to one another or who have other sources of conflict. However, trans-formative mediation can be beneficial because the parties can leave feeling empowered and in control of their settlement as well as connected to the other party.

Facilitative Mediation

The final style of mediation is called facilitative mediation. This style is more commonly used when the mediation is entered into voluntarily, and it mixes elements of both the evaluative and transformative style.

A mediator using facilitative mediation will:

  • Approach the issue with the goal of reaching a resolution that both parties may agree to
  • Design questions to discover the underlying interests of the parties apart from focusing only on a dollar amount
  • Refrain from sharing an opinion about the case unless absolutely necessary
  • Direct the conversation towards civility
  • Diffuse strong emotional reactions
  • Create a space for the parties to acknowledge the other party’s position and come to a resolution

A mediator will use joint meetings regularly to allow the parties to hear each other’s opinions and understand the needs and desires of the other parties; however, facilitative mediators will also take advantage of separating the parties to learn the underlying interests behind a party’s position. This blend gives the mediator control of the process of the mediation while also giving the parties an opportunity to come to a solution together. It allows the mediator to understand each position and make recommendations for joint sessions to influence the parties to reach an agreement. It opens up a collaborative environment but allows the mediator to take control if needed.

Mediation Guidelines for the Styles:

Another aspect of mediation that may change with style and is important to consider is the way the room will feel for the participants. In each of the styles listed above, I briefly touched on how each style of mediation is often accompanied by joint sessions or caucus, but other arrangements may be made, including:

  • Mini Trial: This room will be set up with the parties on opposite sides of the table, a mediator at the head between. It requires the parties to present the legal and factual positions that support their case, and the mediator acts as a judge of sorts. This is most often found in evaluative mediation.
  • Caucus: Caucus was covered briefly before, but to further explain, a caucus-based mediation will keep the parties in separate rooms and have the mediator move back and forth between the two. Caucuses are often used when the parties do not want to be in the same room as one another, or if the mediator senses that the mediation would benefit from separating the parties to gain information. This is most often found in evaluative or facilitative mediation.
  • Problem-Solving: This room will be set up around a table and the parties will try and work together to come up with a solution. This style will rely less on the lawyers and more on the parties to present their interests and stances. This is most often seen in trans-formative and facilitative style mediation.
  • Encounter Group: This room will look similar a problem-solving room, but instead of talking about ways to solve the case, the one ground rule is that the parties can talk about anything but the case and then eventually transition into talking about the relationship between the parties and the strain the case has placed on that relationship to work through the problems from a different angle. This is often used in trans-formative mediation.

Final Consideration For Requesting or Choosing a Styles of Mediation

To make a fully informed decision about a mediator or style, two final considerations need to be made.

  • Role of the Lawyers: A lawyer in an evaluative mediation is will be very involved in the process to plead their case before a mediator and present their position as the strongest. However, in a facilitative or trans-formative mediation, lawyers will often have less involvement to let the parties agree on their own terms.
  • Mediation Style Can be Fluid: Any mediator may use any, all, or none of these styles depending on the situation. Mediators may also have styles that they prefer and tend to stick within one style

Understanding the styles and styles of mediation gives you the ability to pick the tools needed to help yourself, your client, or the parties in your mediation achieve an outcome that gives each party satisfaction in the process and the result. If chosen wisely, the mediation will run as hoped for and should bring a satisfying result.

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Emily Holland
Emily Holland is a Contributing Editor at ADR Times. She is also a recent graduate of Pepperdine Caruso Law. While in law school, Emily served as an executive editor on the Pepperdine Dispute Resolution Law Journal and had the opportunity to learn about ADR from world-class professors of the Straus Institute for Dispute Resolution. She calls the city of Minneapolis home, and spends her free time running through the parks or searching for the best matcha from local coffee shops. Emily can be reached via email at [email protected]