Mediation is a profession like any other profession. Just as doctors and nurses have different bedside manners, and lawyers have different client skills, mediators have different styles in the process that they use to assist parties in reaching resolution. And like any other profession, those styles can have an impact on the parties themselves.
Before you choose a mediator to assist you in resolving an issue or issues, it is important to know the style that your mediator uses. Many mediators blend various styles to meet the needs of the parties, while some remain true to a particular style. No one style is better than any other, but anyone engaging a mediator needs to know what style will be used for the mediation in order to be comfortable with the process itself.
A Range of Styles
Every mediator and every mediation style has a role to play in the conflict resolution process. The mediator’s style can range from being extremely involved to minimal involvement. One can view the range of styles of mediation as follows: evaluative, problem-solving, problem solving-plus and transformative.
Most parties who have contact with the legal system have had experience with the evaluative process. Settlement conferences with retired judges are evaluative in nature. A settlement judge or an evaluative mediator will listen to the issues, information and goals of each party and gather data related to each party’s position.
At that point, a settlement judge or evaluative mediator will provide his/her opinion as to the pros and cons of each party’s position. In a litigated setting, the evaluative mediator will tell the parties what s/he thinks is the most likely outcome of the matter if it were to be litigated. Often, this will bring the parties to resolution.
However, it also is harder for a mediator to maintain the appearance of neutrality if s/he is telling the parties who might win and who might lose on each issue. Some believe that this is not really mediation, but settlement discussions, which take the self-determination aspect of the process away from the parties.
Facilitative Model
The model of mediation that most mediators engage in is the facilitative model, under which self-determination is the primary goal in each process. Under this model, there is a wide range of styles. However, they seem to fall between two general types: problem-solving and transformative.
Under both of these styles, the mediator will be in control of the initial process of arranging the mediation sessions, preparing the agreement to mediate and providing information in introductory remarks. The degree to which the parties are in control of the process thereafter is what differentiates the styles. In both of these styles, the self-determination of the final outcome or solutions remains in the control of the parties.
Under the problem-solving style, the mediator controls the process, setting up the room and thereafter the process through his/her initial remarks. Often the mediator begins with a set of assumptions and goals as a mediator: that conflict is a short-term problem in need of solution; that the goal of the mediation is to reach a settlement of the dispute; and that the mediator directs the problem-solving process.
The mediator sets the time limits, designs a process to achieve settlement, may set ground rules for the process and assists in developing options with the parties. In the problem-solving style, questions may be asked to keep the parties focused on the issues and goals they have outlined, and sometimes to raise issues that the parties need to consider, but perhaps have not. The determination of success is the ability to move the parties step by step to a mutually agreeable solution or settlement.
In the transformative model, the assumptions tend to be different. The conflict is seen as an opportunity for moral growth and transformation, and the conflict is considered a long-term process to be dealt with. The goal of mediation is to empower the parties and guide them to the recognition of perspectives of others.
The parties set the goals, direct the process and design the ground rules. The time is open ended, and the parties determine how the time is spent and what subjects are discussed.
The mediator follows the parties where they take the conversation and allows them to determine the use of the time. The mediator is there to assist the parties in fashioning the process and the outcome of each mediation session, but does not control either.
If the parties decide to have a discussion of an underlying issue between them that has nothing to do with the issues and/or goals defined by them at the beginning of the process, the mediator in a transformative model allows that to occur. Success is determined by any increase in the parties’ empowerment and/or recognition of others.
Problem Solving-Plus
There is a third style that falls a bit in between problem-solving and transformative mediation. The term “problem solving-plus” can be used to define this style.
In this style, the mediator controls the process and guides the parties down a solution-oriented path. The difference is that, in a problem-solving process, the mediator might not choose to focus the parties on feelings but will deal with a more factually based process.
A problem solving-plus mediator might use an expression of feelings as an opportunity to explore those feelings and their impact on the resolution process. There is more of a following of the lead of the parties and allowing an exploration of the feelings. Often, this style of mediation is used in family law settings, where a more future-oriented solution may be necessary to avoid future conflicts.
Every mediator uses some or all of these styles at various stages of his or her career. The key is to know the style of mediator that you believe would be the most helpful to you in resolving the issues and disputes that bring you to mediation.
Knowing how your mediator sets up the process is important, and it is worth the time to explore the options before you choose. In any case, mediation is an option to explore as a means for settling any conflict or dispute.
Ceecee Paizs practices mediation through The Mediation Center (www.agreeonit.com), located in Ellicott City, and also provides mediation training. She can be reached at Ceecee@paizslaw.com.
