When parties involved in a serious conflict want to avoid a court battle, there are types of mediation can be an effective alternative. In mediation, a trained mediator tries to help the parties find common ground using principles of collaborative, mutual-gains negotiation. We tend to think mediation processes are all alike, but in fact, mediators follow different approaches depending on the type of conflict they are dealing with. Before choosing a mediator, consider the various styles and types of mediation that are available to help resolve conflict.
7 Types of Mediation
In facilitative mediation or traditional mediation, a professional mediator attempts to facilitate negotiation between the parties in conflict. Rather than making recommendations or imposing a decision, the mediator encourages disputants to reach their own voluntary solution by exploring each other’s deeper interests. In facilitative mediation, mediators tend to keep their own views regarding the conflict hidden.
Although mediation is typically defined as a completely voluntary process, it can be mandated by a court that is interested in promoting a speedy and cost-efficient settlement. When parties and their attorneys are reluctant to engage in mediation, their odds of settling through court-mandated mediation are low, as they may just be going through the motions. But when parties on both sides see the benefits of engaging in the process, settlement rates are much higher.
Standing in direct contrast to facilitative mediation is evaluative mediation, a type of mediation in which mediators are more likely to make recommendations and suggestions and to express opinions. Instead of focusing primarily on the underlying interests of the parties involved, evaluative mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations. Evaluative mediation is most often used in court-mandated mediation, and evaluative mediators are often attorneys who have legal expertise in the area of the dispute.
In transformative mediation, mediators focus on empowering disputants to resolve their conflict and encouraging them to recognize each other’s needs and interests. First described by Robert A. Baruch Bush and Joseph P. Folger in their 1994 book The Promise of Mediation, transformative mediation is rooted in the tradition of facilitative mediation. At its most ambitious, the process aims to transform the parties and their relationship through the process of acquiring the skills they need to make constructive change.
In med-arb, a mediation-arbitration hybrid, parties first reach agreement on the terms of the process itself. Unlike in most mediations, they typically agree in writing that the outcome of the process will be binding. Next, they attempt to negotiate a resolution to their dispute with the help of a mediator.
If the mediation ends in an impasse, or if issues remain unresolved, the process isn’t over. At this point, parties can move on to arbitration. The mediator can assume the role of arbitrator (if he or she is qualified to do so) and render a binding decision quickly based on her judgments, either on the case as a whole or on the unresolved issues. Alternatively, an arbitrator can take over the case after consulting with the mediator.
In arb-med, another among the types of mediation, a trained, neutral third party hears disputants’ evidence and testimony in an arbitration; writes an award but keeps it from the parties; attempts to mediate the parties’ dispute; and unseals and issues her previously determined binding award if the parties fail to reach agreement, writes Richard Fullerton in an article in the Dispute Resolution Journal.
The process removes the concern in med-arb about the misuse of confidential information, but keeps the pressure on parties to reach an agreement, notes Fullerton. Notably, however, the arbitrator/mediator cannot change her previous award based on new insights gained during the mediation.
In e-mediation, a mediator provides mediation services to parties who are located at a distance from one another, or whose conflict is so strong they can’t stand to be in the same room, write Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a chapter in the book Advancing Workplace Mediation Through Integration of Theory and Practice.
E-mediation can be a completely automated online dispute resolution system with no interaction from a third party at all. But e-mediation is more likely to resemble traditional facilitative mediation, delivered at a distance, write the chapter’s authors. Thanks to video conferencing services such as Skype and Google Hangouts, parties can now easily and cheaply communicate with one another in real time, while also benefiting from visual and vocal cues. Early research results suggest that technology-enhanced mediation can be just as effective as traditional meditation techniques. Moreover, parties often find it to be a low-stress process that fosters trust and positive emotions.
Have you used any of these types of mediation and did you find them effective? Let us know in the comments below.
First of all, congratulation for your essay (post)! Secondly, please, I would like to know if there are some sort of difference between Types and Styles of mediation. That is, are they synonyms? And if they are not, could you explain the difference?
I appreciate the article. It’s tough to capture the essence of transformative mediation in a paragraph, so I thought I’d add a little. Transformative mediation focuses on helping parties have the highest quality conversation possible, which doesn’t necessarily mean focusing on needs or interests. It also doesn’t necessarily mean either improving the relationship or acquiring skills. It’s based on the fact that conflict, at it’s core, is a crisis in the interaction between the parties, characterized by a diminished sense of control and a diminished ability to understand the other. The transformative mediation process, tends, very quickly, to allow parties to regain a sense of control “empowerment” and a sense of understanding of or connection to the other “recognition”. Those shifts bring with them more constructive interaction, which is helpful, regardless of the nature of the dispute. It allows for a conversation that allows all parties to live up to their intentions to take good care of themselves and to interact with the other constructively. It allows for effective, efficient resolution of monetary disputes, for healing of relationships, for clarifying the terms of the ending of a relationship, for deciding on appropriate settlements of legal claims, or for achieving whatever it is that the parties want to pursue. The fundamental difference between the transformative approach and others is that it acknowledges the relational nature of all conflict. So, rather than choosing it because it fits a certain type of dispute, it makes sense to choose it if one understands that the conflict, whether between business partners, consumers and corporations, injured plaintiffs and insurance companies, or neighbors, is at its most important level a crisis in the way humans are interacting with each other. In response to Luis’ question, the differences between mediation approaches are often called types or styles interchangeably. But the transformative approach is significantly enough different from any of the other approaches that I prefer to use the words “model” or “framework”. More information about transformative mediation is available at http://transformativemediation.org
Thank you for elucidating some of the differences among types of mediation. As a transformative mediator, I would like to clarify the goal of this type of mediation. Transformative mediators do not encourage participants to do anything. We support them in making their own choices about how they wish to respond to their conflict. Participants choose what is important to discuss (or not) and how they would like to have their conversation. The mediator does not educate on skills but rather follows the participants’ conversation to help them clarify their thoughts, feelings, and choices. Transformative mediators do not aim to transform the relationship; this can happen when the participants feel empowered and then can recognize the needs and feelings of the other person. Our goal is to support empowerment and recognition in the parties. When we do this, the parties often can resolve their conflict themselves.
I ran a mediation center that transitioned from facilitative mediation to transformative mediation. Having trained mediators in both models, they are completely different, beginning with the orientation of each framework, to the way that conflict is understood, to the mediator’s purpose. Further, the center provided transformative mediation in all of the types of mediation provided that included civil court and family court cases in which many had specific requirements from the court with respect to the way that agreements were to be structured for enforceable court orders. Insurance cases, divorce cases, child custody, landlord/tenant, contested wills and estates, business disputes, all with transformative mediation. Attorneys liked the model as well because it was often more efficient and helped them gain a better understanding of the situation through the conversation that unfolded. Transformative mediation can be utilized in any type of dispute as evidenced by experience in a mediation center that worked in partnership with courts as well as those cases that were not referred from courts.
Wonderful analysis, how I wish we as Mediators in Court ref matters are trained more in these techniques in BMC at Bengaluru India.
The article notes: “When parties and their attorneys are reluctant to engage in mediation, their odds of settling through court-mandated mediation are low, as they may just be going through the motions. But when parties on both sides see the benefits of engaging in the process, settlement rates are much higher.” Although that makes intuitive sense, I wonder if there is data to support the idea. I ask because in my experience with many court mediations, with referrals ranging from truly voluntary to semi-voluntary (parties could decline but the court was putting some pressure on them) to conscription, I have not seen much difference in settlement rates. In fact, as a mediator, I sort of like pessimistic, reluctant parties over those with a “I know you will help us” disposition!