Comparing Mediation Models
“Facilitative mediation” is a term of art that applies to a process of mediation in which the mediator’s role is to assist the parties in reaching a solution of their own making. It often is distinguished from “evaluative mediation,” a style that tends to be used in litigated cases, and one with which most attorneys are comfortable. Here are some of the primary characteristics which differentiate the two:
- Goal: To facilitate Collaborating/Integrating negotiation between the parties
- Parties’ decisions are “interest-based,” i.e., “win/win.”
- Parties meet jointly with the mediator. Communication is direct. Parties control the timing and nature of offers.
- Parties may talk about feelings and understandings and expectations.
- Parties are viewed as the experts. Mediator guides the parties to make decisions that are fully-informed. Mediator does not advise or attempt to influence the outcome by offering his or her opinion.
- Parties frequently are not represented, but instead may hire lawyers to perform discrete services such as advising on a particular legal issue or reviewing or drafting legal documents.
- Can be used before litigation is initiated and at subsequent stages.
- Works well when the parties have a vested interest in maintaining a relationship (for example, when the parties will be co-parenting).
- Provides opportunity for parties to address a range of common concerns that are not necessarily addressed by legal solutions.
- Allows for greater creativity in problem solving, which results in greater satisfaction and fewer incidents of conflict.
- Conflicts and disputes can be resolved early on, before fears are heightened and the parties are entrenched in positions.
- The facilitative mediation process can feel therapeutic. Conversation about important and difficult issues are facilitated by the mediator in a manner that feels safe and geared toward creating understanding.
- Parties often learn the skills to manage future conflicts without the need to resort to litigation.
- A facilitative process may take longer to resolve than other styles.
- Lack of interest in a continuing relationship may make the process less desirable for individuals desiring a quick and clean resolution.
- Requires skillful planning by the mediator and substantial understanding of the parties’ interests, due to the complex nature of eldercare family disputes. This is one reason this process may take longer.
- Goal: To get a fair agreement through compromising
- Parties’ decisions are law-based, i.e., “I win/You lose.”
- Parties meet separately with the mediator. Communication is through the mediator as intermediary who relays messages, decides what information is helpful to settlement.
- Parties’ conversations involve facts and the law.
- Parties often receive opinion from the mediator about the legal strengths and weaknesses of each party’s argument or settlement offer and may even make recommendations for settlement.
- Parties are represented and accompanied by counsel.
- Generally regarded as most effective after Completion of discovery.
- Works well if there is not an interest in an on-going relationship between the parties.
- Effective when there are highly divergent perceptions of fact or law.
- Works well when there is a distributive issue.
- Provides insight into the legal strength of one’s own and the other party’s positions.
- Often can be completed in less time than other types of mediation.
- Positional bargaining may produce impasse and escalate conflict.
- Unlikely to work if conflict is already escalated.
- Narrow focus on legal rights results in settlements that are limited to legal outcomes. These may not satisfy needs and interests, and can result in frustration, appeals, and ongoing litigation about child support and parenting plan disputes.
- Evaluative role of mediator can lead to coercion of a party.