There are four main models of mediation which are deployed differently. We will not cover what mediation is, as we did that in our previous article. Therefore, let’s look at the different models.
Facilitative mediation
In facilitative mediation, the mediator remains neutral and non-judgmental throughout the process. The facilitative mediator gives no opinions and makes no recommendations. The mediator does not impose a decision on the parties and limits their role to helping the parties reach a settlement that sufficiently meets their needs.
The mediator is in charge of the meeting: they decide how it is structured and when there will be joint and separate meetings with the parties. The mediator will set ground rules and get the parties’ agreement to these.
The mediator is not in charge of the outcome: that belongs to the parties. The facilitative mediator will try to ensure that the parties come to an agreement based on information and understanding. To this end, they hold joint sessions where everyone is present, enabling the parties to hear each other’s views.
The facilitative mediator’s aim is for the parties themselves to have the major influence on the decisions reached, rather than the parties’ advisers, legal or otherwise. Many of those who come to a mediation may, however, come with the expectation that the mediator will make a decision, or at least give some advice on what might happen if the case went to a tribunal or court.
They may ask the mediator for their recommendations. The facilitative mediator resists these expectations and should, during their opening address and at appropriate junctures during the meeting, emphasise that their role is not to advise or make any decisions regarding settlement.
For many who become mediators, especially those who come from a legal background or are arbitrators, this neutral role can be a challenge, as they are used to giving their views, opinions and decisions.
The mediator can be rightly described as the ‘manager’ of the process. They are in control of the process but the parties remain in full control of the outcome. The criticisms levelled at facilitative mediation are that it takes too long and sometimes ends without agreement. There are also concerns that outcomes can be contrary to standards of fairness and that mediators cannot and do not protect weaker parties.
Evaluative mediation
In evaluative mediation, the mediator assists the parties to reach a resolution by discussing the weaknesses of their case, and even predicting the outcome if the case goes to court or tribunal. They may make formal or informal recommendations to the parties as to the outcome of the issues.
An evaluative mediator will assume that the parties want the mediator to provide guidance and direction as to what are the appropriate parameters for settlement.
Evaluative mediators are more concerned with the rights of the parties rather than their needs and feelings.
They may use concepts of fairness upon which to base their evaluation and use their knowledge – whether based on law or industry practice – to give direction. The parties look to the mediator to give direction and guidance.
It will be necessary for an evaluative mediator to have knowledge and expertise, and they are likely to be chosen for their legal or professional understanding and reputation in any given field. Given their expertise, they can help parties resolve any genuine disagreement on legal or technical issues. This will prevent an impasse, thus permitting the mediation to reach a successful conclusion. Furthermore, the evaluative mediator can also use their knowledge and expertise to effectively ‘reality-test’ the parties’ positions.
Evaluative mediators will mostly keep the parties and their advisers in separate meetings rather than in joint sessions with everyone present. They then shuttle between the parties in what could be termed ‘shuttle diplomacy’. Evaluative mediation is, in many ways, similar to conciliation.
Settlement mediation
Settlement mediation is a problem-solving mediation model that shares many characteristics with the evaluative model. The purpose of the mediation is to reach a settlement and it focuses on demands that can be traded off. The underlying assumption of this model is that conflict is caused by differences of interests.
The mediator does not, in contrast with evaluative mediation, give his or her evaluation of the legal strengths and weaknesses of the “parties cases.”
The mediator will set time limits and encourage the parties to meet these deadlines. Emotions such as anger are tightly controlled as these can prevent the focus being on the ‘real’ issues. Non-negotiable issues are diverted, with the parties encouraged to focus on negotiable issues. The mediator can be quite directive about the settlement terms. Many of the criticisms of the evaluative model can also apply to the settlement model of mediation. In addition, the restricted time available puts pressure on the parties to settle and may lead to dissatisfaction after the event.
Transformative mediation
Transformative mediation is the newest of the models and is firmly based on the ideal of complete empowerment of the parties, with the mediator focusing their energies upon helping each of the parties recognise the others’ needs, interests, core beliefs and points of view. It is based on the belief that the parties in dispute are the people best able to decide whether and how to resolve their dispute.
People see the same facts and events through different eyes, for a whole range of different reasons (education, culture, religion, gender, age, ego, wealth (or not), political belief, residency, authority (or reaction to it), principles, needs, sexual orientation and many more). They interpret facts and events differently as a result, and it does not necessarily mean that their ‘truth’ is more right or wrong than another’s, just different.
The goal of transformative mediation is to transform the parties’ views, attitudes and approach to one another. The transformative mediator believes that it is only when the parties can see the ‘humanness’ of each other and change their prior views and attitudes towards each other, that their relationship will be changed for the better and, once this occurs, the concrete problems they have reported experiencing with each other will diminish.
In transformative mediation, the parties structure both the process and the outcome of the mediation, and the disputes. The transformative mediator keeps the parties together in joint sessions in order that the parties can give each other ‘recognition’. They argue that in facilitative and evaluative mediation, too much pressure is put on parties to reach a resolution. They believe that the parties should decide whether they want a resolution, not the mediator.
