Understanding the types of mediation is a vital skill when preparing for and participating in mediation. Knowing how the mediator is operating and what skills they are using is important for the parties and their counsel to work best with the mediator and still emphasize what is an important consideration for them. It is also a vital skill for mediators to possess because while each mediator will have their preferred method, they are bound to come in contact with a dispute where another type of mediation would be helpful. Finding, understanding, and perfecting the styles of mediation will help anyone involved in mediation to participate fully and come away happy. This article will outline the five stages of mediation. It will then discuss the different types of mediation and how the steps may change in each type. However, before exploring any of the types of mediation, it is important to consider the purpose of mediation and what it aims to accomplish.
When considering mediation, it would be easy to assume that the main purpose of mediation is to settle the dispute. While settling is one of the goals of mediation, the greater purpose of mediation is to enable the parties to fully understand their case and leave knowing what the best option or course of action is for their case. A good mediator can listen to the parties and see the main interest of a party beyond only the financial aspect and help each party understand this interest as a way to creatively settle the case. A good mediator will also understand that based on these interests, a settlement is not always possible, and helping the parties leave with a stronger understanding of their case will enable the parties to make better decisions moving forward. Some mediation styles will focus more directly on these interests, while others will focus on the law and facts, but all mediators will be evaluating and acknowledging the underlying interests.
The Five Steps of Mediation
Mediations tend to move through five stages. These stages are different depending on the role of the participants. This may seem strange, but because the goals and roles of mediator and party or disputant are different, they tend to move through different stages. For more on the differences, you can read an article on the subject of ADR Times here. However, some similarities can be drawn to condense the steps into five distinct stages for both the mediator and the disputant.
- Convening: Convening is the initial conversations between a mediator and the parties where they agree to mediation. The parties can decide whether they want to mediate and whether the dispute is ready for mediation. The parties also begin to prepare for the mediation.
- Opening Statement: The opening statement is the mediator’s chance to layout the process, highlight their experience, and set expectations.
- Communication: Communication is the stage where the parties share their needs and desires for the mediation process. This is usually done in a large group setting, and the other party will listen and evaluate the issues.
- Negotiation: Negotiation is the stage where the parties work with the mediator to present offers and counteroffers to each other. Depending on the mediator’s style, they may play a role here in evaluating and suggesting options, or they may allow the parties to drive the negotiations.
- Conclusion: After the parties have negotiated, they will either settle or decide that they are still too far apart to settle and will leave without an agreement. This assessment can be made by the parties, or the mediator may get the sense that the parties will not be able to settle and suggest that the mediation ends.
The exact way that a mediator and the parties move through these stages will change based on the dispute and the style that a mediator uses, but the main flow of a mediation will remain the same.
An Introduction to the Types of Mediation
Now that the goal of mediation is established and there is common language surrounding the stages of mediation, this article will turn to the types of mediation that a mediator can offer. The main types of mediation are transformative, facilitative, and evaluative. The types or styles of mediation are most evident in the control that a mediator exerts over the process as a mediation proceeds. Certain styles will use more control and provide more of their own opinion into the mediation, while other mediators will allow the parties to establish the conversation and act only as a facilitator. As mentioned above, most mediators will have a preferred style that they usually use but will need to adjust this style depending on the needs of the parties and the power dynamic.
Evaluative mediation is the style of mediation where the mediator exerts the most control throughout the mediation is the most vocal about the positions of the parties and their offers. An evaluative mediator will offer opinions on the strengths and weaknesses of the parties and control how and when the parties interact. This style tends to work well if there is an uneven power dynamic in the mediation, such as in certain divorce mediation or a company against a consumer, and allows the mediator to drive the conversation to focus on the important issues and what the parties need. This type is modeled after settlement conferences held by judges and is the oldest and original style of mediation. Evaluative mediators control the procedure and the outcome of the mediation. Some common characteristics of evaluative mediation include:
- Assessment: The mediator will be assessing the situation at hand at all times. Everything mentioned by the parties will be considered and evaluated. This ensures that the mediator is not missing anything when they make their evaluation.
- Listening: This goes with the assessment characteristic above, but to properly assess the situation, a mediator will often practice attentive listening and make sure to fully understand everything that a party offers. This helps the parties feel that their case is being heard fully and completely.
- Evaluation: After listening to the parties’ cases, the mediator will evaluate the strengths and weaknesses of the positions and offer an honest evaluation of each party’s case. This helps the parties understand where they stand and where their bargaining power lies.
- Predictions: An evaluative mediator will often offer predictions of how a party’s case or position would fair in a traditional court if the parties are unable to settle. This can help adjust a party’s inflated sense of their case.
- Recommendations: The mediator will also present a recommendation for settlement. This can be an informal suggestion after the initial evaluation or it can be a formal suggestion written and presented to the parties as an opening option. This can encourage the parties to consider a settlement based on the strengths of their case.
- Shuttle Diplomacy: Evaluative mediators will often separate the parties, speak with each of them separately, and then shuttle the information they agree to share to the other party. This allows the mediator to shape the conversation and encourage the parties to consider the weakness of their case without having to face those questions in front of the opposing party.
Evaluative mediators are the original-style of mediators and can be very helpful for parties that are unsure of their positions and need someone to evaluate their case and offer suggestions. It can also be helpful for parties who are unable to voice their needs and interests well to the other party directly. It gives the parties permission to consider their strengths and weaknesses and have a neutral evaluation of the strength of a case.
Facilitative mediation is considered the middle of the road when it comes to the amount of control that a mediator exerts over the mediation. Here, the mediator will control the procedure of the mediation, but the parties will control the outcome. It gives the parties more freedom to be creative with their cases and find ways to bring their ideas closer to a settlement, but still provides the procedure and establishes boundaries for the parties to work within. This style arose as a way for mediators to act as facilitators rather than evaluators and give more agency back to the parties. Some common characteristics of a facilitative mediator include:
- Collaboration: The facilitative mediator will seek a resolution that both parties are fully comfortable agreeing to. This allows the parties more freedom to shape the outcome of the mediation and not have an evaluation of their case driving the mediation.
- Questions: Facilitative mediators will ask questions that help the parties articulate their underlying interests that are driving their demands. This gives the parties a deeper understanding of what they need to settle and gives the parties the ability to be creative with their suggestions.
- No Opinion: Usually, a facilitative mediator will refrain from sharing their opinion of the case unless it is absolutely necessary and the parties need to hear it to settle. Again, this allows the parties to settle without feeling like they have to based on the mediator’s evaluation of their case if it moves forward.
- Diffusion: There are often strong emotions attached to disputes and mediations, and occasionally those will come out in the mediation. A facilitative mediator will encourage the parties to proceed with civility and will encourage the parties to diffuse their strong emotions. This helps keep the parties on track and the conversation civil.
- Acknowledgment: A facilitative mediator will also give the parties space and encourage the parties to acknowledge the other party’s position and interests. This helps the parties understand the other’s position and is often what one party needs to feel comfortable settling.
- Caucuses and Joint Sessions: This type of mediation moves seamlessly between individual caucuses with the parties and joint sessions where the parties can share directly with each other. This strikes a balance between control and empathy.
Facilitative mediators allow the parties to drive the outcome of the case and encourage the parties to be creative in their settlement and with each other. Facilitative mediators tend to be the most common style today and work well in a wide variety of situations. The mixture of control and party agency makes it an agreeable style for many parties as well. This style works well for parties that are on the way to settlement and understand what they need. It also requires parties who are comfortable sharing their needs with the other party.
Transformative mediation is the newer form of mediation that relinquishes much of the control to the parties in both the procedure and the outcome. Transformative mediation seeks to transform the conflict by empowering the parties to agree. The transformative mediator is only in the room to call attention to the needs, interests, values, and points of view of the other party. Transformative mediation seeks to transform the relationship between the parties past the conflict and back to a strong and collaborative relationship. This type of mediation would not work well with a large power imbalance but works well when the parties are willing to work together to solve the dispute. Some common characteristics are:
- No Opinion: Transformative mediators will not offer an opinion on the strength or weakness of a party’s case. This allows the parties to be confident in their decisions.
- Encourage Evaluation: Transformative mediators encourage the parties to evaluate their position in relation to each other. This allows the parties to come to their own conclusions about the strength or weaknesses of their case.
- Following: The mediator will follow the lead of the parties and encourage the parties to continue to participate. This gives the parties control over the process.
- Empathy: Transformative mediators will encourage empathy and acknowledge the other party’s position, allowing the parties to see the needs of the other party.
- Guide: The transformative mediator will guide the parties as they move toward settlement rather than act as an authority figure with the answers. This again returns agency to the parties.
- Joint Sessions: Transformative mediation happens almost exclusively in joint sessions because only the parties can drive the mediation and separating them from each other removes the human element from the mediation and information. This gives the parties the ability to control how their information is relayed.
Transformative mediation seeks to preserve relationships and encourage the parties to look past their differences and find common ground where they can agree. It allows the parties to control the outcome of the mediation and control the process of achieving that outcome. This is particularly helpful when the preservation of a relationship is important to the parties. It works best when the parties have already begun to negotiate and have an idea of what may work for a settlement.
Mediation seeks to help the parties understand their case and find a settlement that highlights their strengths and needs. An expert mediator has options to choose from when conducting mediation and can choose a style based on the needs of the parties. It is not uncommon for mediators to even move between styles as the mediation continues and moves through the stages. Knowing how a mediator operates and uses a style can be the best preparation that a party can bring to the mediation table because it will allow the party to articulate their position within the style and will help the mediator and the other party understand the position. Finding a style that works for the dispute helps the participants feel confident in their decisions and understand the case at a deeper level.