24 Oct Mediation Style and Process: Who Will Be Your Guide?
In horse racing, there is a popular expression, “different horses for different courses.” Some horses run well in mud; others on turf; some don’t run well anywhere and find themselves facing their mortality sooner than they might expect.
This concept applies equally to mediation. There are many ways mediators and parties at the table can work to reach an agreement.
A mediator’s style and choice of process can be a key element in helping to achieve a mutually agreeable result that satisfies everyone. It’s important to remember that while there can be numerous paths towards a settlement, some can be bumpier than others or possibly lead to poor results.
In this blog, I outline the main mediation styles and processes, highlight their merits, and explain my own style and process. I hope to demonstrate why your choice of mediator can be critical to directing the progress of negotiations.
There are two major mediation styles – facilitative and evaluative.
Facilitative mediators encourage participants to consider their interests, assist them in identifying areas of agreement or common interest, and support their efforts to propose and discuss ways to reach agreement on outstanding issues. Facilitative mediators tend to keep their own opinions on the merits of a case to themselves. A more idealistic form of facilitative mediation, called transformative mediation, aims to equip participants with the skills they will need to fundamentally change their relationship going forward.
In evaluative mediation, a mediator helps parties to measure the relative strengths and merits of their positions or overall cases, comments on the fairness of proposals, and makes recommendations that can lead to potential solutions. Evaluative mediations are more commonly used in court-ordered mediations or when a mediator is a subject matter expert.
Although these styles may seem to be complete opposites, many mediators see them as being part of a continuum.
Which Style Is Right For You?
That’s the million dollar question. Fortunately, a well-trained mediator can help you find the answer.
I believe it’s critical for a mediator to have the flexibility and skill to move between these styles and anywhere along the continuum between them. Since no two cases are alike and every participant comes to a mediation with different history, attitude, and expectations it’s incumbent on a mediator to assess what style and process will be most likely to create the conditions for a positive outcome – whatever that may look like.
A good mediator will talk to parties in advance of the start of the mediation to determine the scope of the case, what information is needed and what each party is hoping to achieve. The mediator will determine if (s)he has the technical expertise to perform an evaluative function if required. Finally, the mediator will assess how to set the agenda and identity potential challenges and pitfalls for the mediation.
Picking the Process
Although there are usual steps in a mediation, their order, number and length will vary depending on the needs of the parties.
A mediator’s opening statement will set the stage and the expected agenda for the session, followed by opening statements by each of the parties. Depending on the mix or interests, issues and personalities at the table, a mediator will then either move directly in joint discussion with the parties or caucus with them privately.
During these discussions and private meetings, the mediator will determine the extent to which (s)he plays the facilitator role or provides commentary or opinions. The facilitative or evaluative function may change over the course of these discussions.
If there are outstanding matters that could be best dealt with in joint negotiations, parties may be called to return to the table. Finally, if there is mutually acceptable settlement agreement, the mediator will prepare minutes of settlement for the parties and their lawyers to sign. If there are unsettled matters, the mediator will determine with parties if another mediation session would be beneficial or whether other information or documentation may help the parties continue their discussions.
The Matters At Hand
A mediator must be conscientious and thoughtful in determining which style and process to employ and carefully consider when or if (s)he should move in a different direction. Each style or variation can have its drawbacks.
The facilitative approach is considered too time-consuming by some critics, while the evaluative approach could be heavy-handed or undermining one or more parties’ interests by being more coercive.
An experienced and skilled mediator should have the ability and flexibility to use their best judgment and offer a style and process that will ultimately help parties move forward in a constructive way.
When selecting your mediator, ask about their own style and perspective on the process. Sound them out on how they will respond to your unique situation. Remember, when you have a choice of many paths towards your goal, opt for one where an experienced guide can lead you away from obstacles and towards clarity and certainty with ease.
ABOUT THE AUTHOR
Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating and arbitrating primarily personal injury and insurance cases. He serves as an arbitrator in loss transfer and party disputes under the Insurance Act.
Vance can be reached at firstname.lastname@example.org or (647) 777-4011.
To schedule a mediation with Vance, visit: https://coopermediation.ca/vances-online-calendar/.