A more conscious manner of assisting parties in mediation
Most mediators and counsel employing their services are aware of the three main types of mediation: Evaluative, Facilitative and Transformative. Depending upon the nature of the dispute, counsel are quick to assert their chosen style. In observation, this is generally based upon their own needs and familiarity with that specific style. However, perhaps a moment of thought and consideration is in order for what is truly in the parties’ best interests.
In reviewing the litany of material available on the subject, the moniker of “Facilitative Mediator” is credited to Jon Linden during the 1960’s and 1970’s. It was the most structured and most utilized style of mediation at the time (Linden). A “Facilitative Mediator” will generally ask questions of the parties and attempt to normalize their points of view in search of their more essential interests, supporting their positions and points of view. The Facilitative mediator will then attempt to assist the parties in finding options for a resolution of the dispute, reviewing each and comparing it to their desires and interests (Zumeta).
A facilitative mediator will not provide advice to a party, suggest an outcome or position that a party should take or assert one that the mediator believes is in that party’s best interests. (Etcheson). This style of mediation is of a more classic style, with the mediator remaining completely neutral. Even in the face of Impasse a Facilitative Mediator will continue to ask questions in hopes of the parties finding their own way out of the forest of issues, arriving at their own resolution.
In a paper offered to the Colorado Bar Association, Debbie Reinberg and John Rymers offer suggested “pro’s and con’s” for each style of mediation. With specific regard to the Facilitative Style, they would suggest the following advantages and disadvantages that have been adapted for the purpose of this article:
- Works well when the parties have a vested interest in maintaining a relationship.
- Focuses on identifying a wide range of common interests between the parties and crafting solutions that meet all parties’ interests. This leads to a broader and more complete resolution.
- Works well to identify substantive, procedural and psychological interests.
- Allows for greater creativity in problem solving.
- Greater probability than evaluative mediation to promote trust and an on-going relationship between the parties.
- Works well when there are complex interpersonal or family dynamics.
- Allows for early resolution of disputes before parties become entrenched in their positions.
- The very nature of the facilitative mediation process can be therapeutic because it allows the parties to say important things to one another in a safe environment.
- A facilitative process may take longer to resolve than other styles.
- May be difficult if there is no interest (or perceived interest) in an ongoing relationship between the parties.
- Can elicit strong emotions that may not be anticipated by the mediator or the parties.
- Requires skillful planning by the mediator and substantial understanding of the parties’ interests. This is one reason this process may take longer.
- Sometimes difficult to get disputing parties to buy into a facilitative process, especially if the issues are not clearly defined.
During the 1980’s, a new style emerged known as “Evaluative Mediation”. Under this style of mediation technique, the mediator will make suggestions to the parties and even offer them an opinion regardless of whether or not it was requested. (Zumeta). It is hypothecated that this style arose as a result of the increase in the use of mediation in court ordered or court referred cases, and in response to the onslaught of cases mediators were pressured to move them along quicker, foregoing a more “interest based” technique such as a facilitative mediator would use. (Etcheson). The feeling is that a party cannot make a truly autonomous decision without knowledge of the relevant legal and social norms. (Waldman, citing as authority Stark).
Mediators frequently use this technique when the sole issue being mediated involves the payment of money damages, or single issues. An evaluative mediator will offer an opinion on the case based upon his or her own knowledge or expertise in the subject matter of the dispute. It may be to the value of the case, or simply the mediator’s opinion as to the merits of the case. (Russell). The evaluative style has been stated as having the following advantages and disadvantages:
- Works well if there is not an interest in an on-going relationship between the parties.
- Tends to lead to resolutions that are based upon points of law.
- Works well when parties are on a litigation path.
- It is a good way to evaluate the legal strength of a party’s position.
- Works well when there is a distributive issue.
- Often can be completed in less time than other types of mediation.
- Does not promote an on-going relationship between the parties.
- Often limits the focus to legal rights rather than overall needs and interests of the parties.
- Outcomes tend to be more narrowly framed in legal terms.
- Greater potential for misuse of mediator power due to the evaluative role of the mediator.
- Because issues are more narrowly framed, there is less opportunity to address psychological interests.
- There is often less opportunity for parties to feel listened to and acknowledged.
Recently, there has been a trend toward what has been called “Transformative” mediation. (Bush, Folger). The major difference between this style and the other two is that in the Transformative style the mediator will attempt to balance the negotiating power of the parties through a discussion and evaluation of the pother party’s position in hopes of getting that party to recognize the other’s position. Practitioners of this technique strive to “transform” the relationship between the parties through empowerment and recognition of the other party’s position and interests. (Zumeta).
In the Transformative mediation, the mediator will seek to cause the parties to communicate directly with each other. (Linden). This author would suggest that through the mechanics of restating and rephrasing, a mediator would attempt to get the parties to acknowledge their feelings and interests in hopes of equalizing the imbalance of power often found in mediation. Many court programs are gravitating toward this style in their Justice programs, as well as in their family programs.
The adapted advantages and disadvantages of this style have been stated as being:
- Allows for the greatest amount of self-determination of the parties.
- Allow the parties to learn about themselves and the other parties, assisting them in moving forward from where they were previously stuck.
- Provides the parties with new tools to resolve their own disputes in the future.
- Can be powerful in disputes involving strong emotional aspects as transformative mediation can help parties begin to heal and learn new skills to move forward.
- Has all the advantages as facilitative mediation.
- Not everybody desires relationships to be transformed. Many people just want resolution.
- May create conflict between the mediator and the parties if there is not a shared interest in the transformative approach.
The are other, more esoteric forms of mediation technique, but these are the three main forms that we often encounter and employ in mediation. Often, as has been stated previously in this article, counsel for one of the parties will suggest or request an Evaluative mediator, or a Facilitative one. Often, this is due to the nature of the conflict or perhaps issues that one attorney may have with his clients where an affirmation of his advice through the means of an evaluative mediator is what the attorney feels his or her client needs.
In a paper authored by Dorcas Quek, District Judge for the Subordinate Courts of Singapore, a different theory was presented. The basis of his position was that the basic tenet of mediation was self-determination. Another way to look at this is to say that disputants emerge from court proceedings often feeling dissatisfied with the process, while participants in a mediation emerge from their dispute feeling as if they have received exactly what they needed as opposed to a third party telling them or assessing what they needed. (Waldman) Evaluative mediation has a tendency to undermine that precept as an evaluative mediator loses his or her neutrality and infringes upon the parties sense and need for self-determination.
As part and parcel of this ability of parties to self determine is the need for the party to be able to make an accurate evaluation of their alternatives to consider. An argument for an evaluative style involves an assessment of the BATNA (Best Alternative To a Negotiated Agreement) and the WATNA (Worst Alternative To a Negotiated Agreement). An evaluative style helps the parties to do these calculations and make this consideration.
However, there are many techniques available to assist parties in making this determination exclusive of a mediator suggesting an outcome or providing his or her opinion. They could come by means of continued probing questions of parties and counsel in caucus to assist them in deriving their own peculiar BATNA and WATNA. Going hand in hand with this analysis is reality testing, again in that private caucus. Care must be taken that these not be conducted too early in a mediation session as they could have the outcome of causing a party to become more emboldened in their position, creating a more difficult series of negotiations. (Quek, at page 4).
This author would submit based upon experience that the parties themselves through their actions and comments will suggest the proper methodology to be employed. There are times where parties are sophisticated enough and have done their own evaluations to the point where a purely facilitative method works best. On the other hand, there are those cases where the parties are capable of making their own decisions but for whatever reason have been unable to accurately evaluate their own risks, or their own BATNA and WATNA. These cases need to have within them an evaluative approach, but then fall back on a Facilitative approach once the parties have become educated enough as to be able to make such a decision.
It is this mixed-method that I refer to as Amoebic Mediation. Just as the single celled protozoan will evolve and change its shape, so must the mediator. The mediator must take his or her clues from parties and counsel and then act accordingly. The best manner for doing this is through the continued use of my favorite mediation tool – the one that I insist remain on the top shelf of the mediator’s toolbox – the Question.
The first line of questioning must take place prior to mediation whenever possible. These initial questions are generally directed to counsel in an effort to determine how much discussion and evaluation has taken place. Have the parties discussed the BATNA and WATNA? Have they realistically evaluated the risks and potential rewards of their positions? Is the party unreasonable in their position or are they skeptical of the advice given by their counsel, and need a re-affirmation of the advice given by counsel? Does counsel simply have control issues with their client?
The second series of questions should occur subtly during the opening statements of the parties. During this phase of the process the mediator must be keenly aware of what the parties are saying both in terms of the spoken word as well as body language. The mediator must question and look for “tells”, picking up on perceived weaknesses in that party’s position or argument. This line of questioning is much more superficial so as not to subject them to embarrassment during opening statements or taking other action which would cause the party to become more ingrained in their position and less willing to compromise or discuss alternatives.
There has been great debate of late as to whether opening statements should be employed or whether the parties should proceed immediately toward caucus. Still others would debate the use of caucus, insisting on having the parties negotiate together and not in private. These topics require much more depth than this paper and it is presumed that a brief opening statement is given for step two. In the event that no opening statements are given the line of questioning employed should simply be added to the third and final step.
Finally, the last round of questioning must take place in caucus. Here, in private, is where the styles of evaluative, facilitative and even transformative can and should be employed as needed and as the parties indicate is needed. I have often used all three methods during mediation as needed to keep parties moving toward the goal of resolution. As I like to instruct parties when I begin a mediation, my goal is to assist them in making an informed decision – one that they can make based upon their own evaluation of the merits and risks after a reasoned discussion; balanced with my facilitating their conversation and negations with the other side, and; transforming the parties and their positions into a common goal where they have both maximized the result to their mutual benefits as best as possible.
Facilitative Mediation and Evaluative Mediation are divergent theories, at opposite ends of the mediation “spectrum”. One would seek to have the parties make all the decisions while the other would educate and advise the parties of the merits of their position. The arguments for or against the other are similar with the therapeutic nature of the process being the fallback position of each.
As is stated in conclusion of the Waldman article:
As the mediation field wrestles with divergent visions of mediation’s goal and method, it is important to attend to its own rhetoric of disputant autonomy and control. Only by listening to what disputants themselves have to say about mediator approach and technique can we fashion effective and sensible policies regarding the role of evaluation in mediation.
Just as the Amoeba changes its shape, a mediator must change its style to accommodate the parties’ needs in mediation. Once a style is employed the mediator must not be “married to it”, but must always be flexible enough to fall back on a prior style if the parties, particular issue or point in mediation reached requires it.
- Jon Linden, Mediation Styles: The Purists vs. the ‘Toolkit”, http://www.mediate.com/articles/linden4.cfm.
- Zena D. Zumeta, J.D., Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation, Journal of the DuPage County Bar Assoc. Vol. 11 (1998-99).
- Steven C. Etcheson, Transformative Mediation: A New Current in the Mainstream, Policy Studies Journal. 27:2, 1999, at 393-96.
- Debbie Reinberg & John Rymers, Contrasting styles of mediation: Evaluative, Facilitative and Transformative, Colorado Bar Assoc., downloaded from http://www.eldersolutions.com March 11, 2015. Originally presented to Colorado Bar Association October 15, 2009.
- James H. Stark, Preliminary Reflections on the Establishment of a Mediation Clinic, 2 CLINICAL L. REV., 457, 458 (1996).
- Lela Porter Love, Mediation; The Romantic Days Continue, 38 S. TEX. L. REV., 735, 738-39 (1997).
- Ellen A. Waldman, The Evaluative-Facilitative Debate In Mediation: Applying The Lens of Therapeutic Jurisprudence, Marq. L. Rev., Vol. 82, 155, 165-66, 167-68, 169-70 (DATE).
- Dorcas Quek, Faciliatative vs Evaluative Mediation – Is There Necessarily a Dichotomy?, http://www.lawgazette.com.sg/2013-01/648.htm. Originally presented at an ADR conference on October 4-5, 2012.