If you’ve unsuccessfully mediated a case, it might be because the mediator applied the wrong approach (or no approach).
Maybe you thought mediation was simply mediation. Maybe your mediator thought so too, and simply acted as a go-between, delivering offers and demands. If so, you might have lost an opportunity to resolve your case.
There are three core kinds of mediation approaches: facilitative, evaluative, and transformative. Here is a quick summary of each.
Facilitative: the original form of mediation where the mediator listens to the parties, acknowledges feelings, and tries to find the parties’ interests and their options for agreement. She offers no evaluation of their positions. There are more joint sessions and less caucusing. She invites the parties to their own solution. The process is something like a therapist using talk therapy. This style works well when the parties will have a continuing relationship, such as divorcing parents. At its best, this approach results in a sustainable solution; at its worst, it results in no solution because the parties never get past talking about their own interests.
Evaluative: the next development in mediation, where the mediator evaluates the parties’ positions. She offers opinions on potential outcomes on dispositive motions and verdicts if the case goes to trial. There is usually a short joint session, followed by caucusing, and a joint session at the end. She directs the parties to her solution. Think of a wrestler slowly putting you in an arm lock. This style works well where the parties will not have any relationship after the case resolves, such as a tort case. At its best, this approach results in a quick, satisfactory settlement; at its worst, it results in a forced, unsatisfactory settlement followed by buyer’s remorse.
Transformative: the latest development in mediation, arguably facilitative with muscles. The mediator listens to the parties, hears their feelings, positions, and interests, and then transforms their feelings, positions, and interests by getting the parties walk in each other’s shoes. The parties then reach their own agreement. Think of Socrates walking you through what you think you know but really don’t. Like facilitative, this style works well when the parties will have a continuing relationship. At its best, this style results in a sustainable, near-optimal solution for both parties; at its worst, it results in no solution and a better (mis)understanding of why your opponent is wrong.
This list is not exhaustive. Other styles include narrative mediation (beginning with the conflict and jointly building a new, acceptable story to live by) and directive mediation (essentially a non-binding arbitration where the mediator gives you her decision).
If your case is ripe for mediation, take a moment to think about which style will most likely resolve your case. Do you want to take the lead, or be led; do you want to craft your own solution, or have the mediator craft one for you; do you want to work with your opponent, or do you need the mediator to be proactive? Do you need a sustainable, enforceable agreement because you will have a long-term relationship with the other side, or do you just need an acceptable settlement with an opponent you will never see again?
Once you know these answers, seek a mediator who can deliver the approach you need to resolve your case.
In my next post, I will share my approach to mediation.
Visit the Kalon ADR Center.