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Issue 20: September 2007
Differing Styles and Models for the Conduct of Mediations Print E-mail

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“Sun Tzu, the ancient Chinese military theorist, observed that ‘the true object of war is peace.’ If litigation can be likened to war, then mediation should be considered as the road to peace.”  Keith Howe opened his address to the Janus Club on 8 August 2007 with this evocative statement. The balance of his address is reproduced below.


art_of_war_book.jpg While mediations have gained an increasingly strong foothold in the practice of law the differing styles of mediators have created much intellectual debate.
In a broad sense all mediations have the following characteristics in common:-

  1. It is a decision-making process;
  2. In which the parties are assisted by a third person, the mediator;
  3. Who attempts to improve the process of decision-making; and
  4. To assist the parties reach an outcome to which each of them can assent.2

Within that broad description the conduct of mediations can be as diverse as the disputes that require mediation.  Very few mediations, if any, are ever identical.

Having said that, academic writers on the subject have identified some distinct styles of mediations that are commonly practiced by experienced mediators. This paper will identify and discuss three of those styles, Evaluative, Facilitative and Therapeutic.

Evaluative Mediation

This style of mediation has been referred to as ‘quasi-arbitral in style’3.  Its success requires the mediator to have some knowledge of the subject matter of the dispute to evaluate the strengths and weaknesses of each party’s case.

The participants expect the mediator in this model will provide additional information and using their professional expertise advise and persuade the parties in their negotiations.4

In the context of a mediation involving a legal dispute the evaluative mediator will use his legal expertise to:-

  1. Review the relevant material of the parties;
  2. Assess strengths and weaknesses of each party’s case;
  3. Provide an expert assessment of what might happen if the dispute went to Court;
  4. Initiate proposals for settlement; and
  5. Encourage the parties to accept a proposed settlement.

Critics of this style of mediation suggest that in evaluating and advising the parties the neutrality of the mediator is lost.5  Each opinion expressed by the mediator favours one party over the other.6  Where the mediator provides an opinion it will be rights based and will undermine the participatory, interest-based, norm-creating and consensual features of mediation.7

However, proponents of this style contend that in certain situations this style is what is most effective for the parties.  Where the relationship between the parties is less important, and a quick prediction as to rights and positions is paramount, the parties are more likely to choose evaluative mediation processes.8

Facilitative Mediation

Facilitative mediators promote a forum for the parties to communicate effectively in pursuit of a resolution to their conflict.

Where the parties to the dispute prefer a non-antagonistic approach to the resolution of their dispute and are able to independently address their own interests this model of mediation will be effective.

The role of the facilitative mediator is less interventionist than the evaluative mediator.  The facilitative mediator will concentrate more on the problem and encourage the parties to fashion creative outcomes around mutual interests.9

Knowledge of the subject matter is less important in this model of mediation but rather, an expertise in mediation process and techniques is paramount.10 This style reflects the more traditional approach to mediation.

The facilitative mediator will attempt to:-

  1. Divert the parties into problem-solving negotiation;
  2. Shift the attention of the disputants away from positional claims towards their underlying needs and interests;
  3. Encourage the separation of interpersonal aspects of the dispute from the substantive aspects;
  4. Seek common ground between the parties;
  5. Develop options;
  6. Act as a catalyst for creative problem-solving.11

The goal of this style of mediation is focussed on resolving the dispute by negotiating in terms of underlying needs and interests rather than being restricted by their stance on legal positions and measurement of strict legal entitlement.12

Therapeutic Mediation

The focus of therapeutic mediation is on the parties themselves rather than just the dispute. A therapeutic mediator will assist the parties in mending their relationship in order that they can have workable ways to communicate and resolve conflict in the future.13

This style of mediation may delve into wider aspects of the relationship between the parties than would either of the other models.  For example, to understand the current dispute and why the parties have not been able to resolve it, it may be necessary to open for discussion past issues that have arisen between the parties and how they have impacted on the current relationship.

The therapeutic mediator will:-

  1. Explore the relationship between the parties;
  2. Teach the parties about their relationship;
  3. Teach the parties how to interact for the resolution of their current problem and also in future negotiations.14

A mediation under this model may be seen to be successful even without a resolution of the current dispute. The parties may feel that the experience has allowed them to move forward in their relationship by more effectively communicating.

Which Style of Mediation is Appropriate?

While the three models of mediation discussed above diverge between the very directive end of the spectrum with Evaluative Mediation to the extremely fluid Therapeutic Mediation, there are many hybrids of these models that fall between.

Which style should be used in any particular mediation will depend on the type of conflict and the natural style of the mediator.  Each mediator will already have his own style that he will inflict on each of the models discussed, which in turn will vary the model by any number of degrees.

Below is a useful table adapted from Laurence Boulle’s “Mediation: Principles, Process, Practice”15 comparing the various models and their anticipated applications.

Models of Mediation 

  Evaluative Mediation Facilitative Mediation Therapeutic Mediation
Main Objective Advisory, managerial mediation To avoid positions and negotiate in terms of parties’ underlying needs and interests instead of their strict legal entitlements To deal with underlying causes of the parties’ problem, with a view to improving their relationship as a basis for resolution of the dispute
Definition of Dispute In terms of legal rights and duties, industry standards or community norms In terms of parties’ underlying interests – substantive, procedural and psychological In terms of behavioural, emotional and relationship factors
Types of Mediators Expertise in substantive areas of the dispute, no necessary qualifications in mediation technique Expertise in mediation process and techniques; no necessary knowledge of the subject matter of the dispute Expertise in counselling or social work, with understanding of psychological causes of conflict
Mediator’s Main Role Provide additional information, advise and persuade the parties, bring professional expertise to bear on content of negotiations Conduct the process, maintain a constructive dialogue between the parties and enhance negotiation process Use professional therapeutic techniques, before or during mediation, to diagnose and treat relationship problems
Other Characteristics High intervention by mediator, less party control over outcome Low intervention role for mediator, parties encouraged to fashion creative outcomes around mutual interests Decision-making postponed until relationship issues have been dealt with
Strengths Mediator’s substantive expertise used, outcome within range of likely court verdicts Can make most efficient use of negotiation opportunities, controlled by parties Can lead to ‘resolution’ rather than just ‘settlement’ of dispute
Shortcomings Blurs mediation/arbitration distinction, does not teach parties skills for the future, additional responsibilities for mediator May not reach an outcome, can be lengthy, requires skills from parties Could be prolonged and terminate without any agreement, confuses counselling/mediation roles
Areas of Application Commercial, personal injury, trade practices, anti-discrimination, matrimonial property disputes Community, family, environmental, partnership disputes Matrimonial, parent/adolescent, family networks, continuing relationship disputes

It would be an unusual occurrence for a perfect model of one of the above described styles to be used exclusively in any mediation.  More commonly a hybrid of possibly all three will be adapted to suit the particular dispute and the parties involved.

A knowledge of these styles will equip a mediator to stock his ‘mediation toolkit’ with an armoury of ‘tools’ to use when the appropriate mediation requires it.

An understanding of what particular style a mediator naturally has acquired through his experience will also help him adapt to other styles when needed.

tao_te_ching.jpg Lao Tzu’s sage from Tao Te Ching has, of course, her own particular style.  I will leave it for you to identify which model or hybrid she uses.

The sage has no set mind.
She adopts the concerns of others as her own.
She is good to the good.
She is also good to the bad.
This is real goodness.
She trusts the trustworthy.
She also trusts the untrustworthy.
This is real trust.
The sage takes the minds of the worldly and spins them around.
People drop their ideas and agendas, and she guides them like beloved children.

-The Tao Te Ching, Lao Tzu

Keith Howe

Footnotes 

  1. “Mediation Round Table: Improving the Quality and Effectiveness of Mediation”, Kansas Trial Lawyers Association Jounal, Vol. 26, No. 4, March 2003.
  2. “Mediation: Principles, Process, Practice”, Boulle L. LexisNexisButterworths, Australia, 1996.
  3. Boulle, 1996, supra n. 2.
  4. Boulle, 1996, supra n. 2.
  5. Boulle, 1996, supra n. 2; ‘The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Justice’ Waldman E.A. 82 MARQ. L. REV. 155, 167 (1998).
  6. ‘The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, From an Evaluative Lawyer Mediator’, Stark J.H., 38 S. TEX L. REV. 777.
  7. Boulle, 1996.
  8. Can a Single Ethical Code Respond to All Models of Mediation?’ Mills K.A., Bond Dispute Resolution News Vol 21, Dec 2005.
  9. Can a Single Ethical Code Respond to All Models of Mediation?’ Mills K.A., Bond Dispute Resolution News Vol 21, Dec 2005; Boulle 1996, supra n. 2.
  10. Can a Single Ethical Code Respond to All Models of Mediation?’ Mills K.A., Bond Dispute Resolution News Vol 21, Dec 2005.
  11. Boulle, 1996, supra n. 2.
  12. Boulle, 1996, supra n 2.; Can a Single Ethical Code Respond to All Models of Mediation?’ Mills K.A., Bond Dispute Resolution News Vol 21, Dec 2005.
  13. Can a Single Ethical Code Respond to All Models of Mediation?’ Mills K.A., Bond Dispute Resolution News Vol 21, Dec 2005.
  14. Can a Single Ethical Code Respond to All Models of Mediation?’ Mills K.A., Bond Dispute Resolution News Vol 21, Dec 2005.
  15. Boulle, 1996, supra

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