When parties involved in a serious conflict want to avoid a
court battle, there are types of mediation can be an effective
alternative. In mediation, a trained mediator tries to help the
parties find common ground using principles of collaborative,
mutual-gains negotiation. We tend to think mediation processes are
all alike, but in fact, mediators follow different approaches
depending on the type of conflict they are dealing with.
Facilitative Mediation
In facilitative mediation or traditional mediation,
a professional mediator[1] attempts to
facilitate negotiation between the parties in conflict. Rather than
making recommendations or imposing a decision, the mediator
encourages disputants to reach their own voluntary solution by
exploring each other’s deeper interests. In facilitative mediation,
mediators tend to keep their own views regarding the conflict
hidden.
Court-Mandated Mediation
Although mediation is typically defined as a completely
voluntary process, it can be mandated by a court that is interested
in promoting a speedy and cost-efficient settlement. When parties
and their Lawyers are reluctant to engage
in mediation[2], their odds of
settling through court-mandated mediation are low, as they may just
be going through the motions. But when parties on both sides see
the benefits of engaging in the process, settlement rates are much
higher.
Evaluative Mediation
Standing in direct contrast to facilitative mediation is
evaluative mediation, a type of mediation in which mediators are
more likely to make recommendations and suggestions and to express
opinions. Instead of focusing primarily on the underlying interests
of the parties involved, evaluative mediators may be more likely to
help parties assess the legal merits of their arguments and make
fairness determinations. Evaluative mediation[3] is most often used
in court-mandated mediation, and evaluative mediators are often
Lawyers who have legal expertise in the area of the dispute though
it must not necessarily be so.
Transformative Mediation
In transformative mediation, mediators focus on empowering
disputants to resolve their conflict and encouraging them to
recognize each other’s needs and interests. First described by
Robert A. Baruch Bush and Joseph P. Folger in their 1994
book The Promise of Mediation, transformative
mediation is rooted in the tradition of facilitative mediation.
It’s tough to capture the essence of transformative mediation in a
paragraph or two. Transformative mediation focuses on helping
parties have the highest quality conversation possible, which
doesn’t necessarily mean focusing on needs or interests. It also
doesn’t necessarily mean either improving the relationship or
acquiring skills. It is based on the fact that conflict, at it’s
core, is a crisis in the interaction between the parties,
characterized by a diminished sense of control and a diminished
ability to understand the other. The transformative mediation
process, tends, very quickly, to allow parties to regain a sense of
control “empowerment” and a sense of understanding of or connection
to the other “recognition”. Those shifts bring with them more
constructive interaction, which is helpful, regardless of the
nature of the dispute. It allows for a conversation that allows all
parties to live up to their intentions to take good care of
themselves and to interact with the other constructively. It allows
for effective, efficient resolution of monetary disputes, for
healing of relationships, for clarifying the terms of the ending of
a relationship, for deciding on appropriate settlements of legal
claims, or for achieving whatever it is that the parties want to
pursue. The fundamental difference between the transformative
approach and others is that it acknowledges the relational nature
of all conflict. So, rather than choosing it because it fits a
certain type of dispute, it makes sense to choose it if one
understands that the conflict, whether between business partners,
consumers and corporations, injured plaintiffs and insurance
companies, or neighbors, is at its most important level a crisis in
the way humans are interacting with each other.
Med-Arb
In med-arb, a mediation-arbitration hybrid, parties first reach
agreement on the terms of the process itself. Unlike in
most mediations[4], they typically agree in
writing that the outcome of the process will be binding. Next, they
attempt to negotiate a resolution to their dispute with the help of
a mediator.
If the mediation ends in an impasse, or if issues remain
unresolved, the process isn’t over. At this point, parties can move
on to arbitration. The mediator can assume the role of arbitrator
(if he or she is qualified to do so) and render a binding decision
quickly based on her judgments, either on the case as a whole or on
the unresolved issues. Alternatively, an arbitrator can take over
the case after consulting with the mediator.
Arb-Med
In arb-med, another among the types of mediation, a trained,
neutral third party hears disputants’ evidence and testimony in an
arbitration; writes an award but keeps it from the parties;
attempts to mediate the parties’ dispute; and unseals and issues
her previously determined binding award if the parties fail to
reach agreement, writes Richard Fullerton in an article in
the Dispute Resolution Journal.
The process removes the concern in med-arb about the misuse of
confidential information, but keeps the pressure on parties to
reach an agreement, notes Fullerton. Notably, however, the
arbitrator/mediator cannot change her previous award based on new
insights gained during the mediation.
E-mediation
In e-mediation, a mediator provides mediation services to
parties who are located at a distance from one another, or whose
conflict is so strong they can’t stand to be in the same room,
write Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a
chapter in the book Advancing Workplace Mediation Through
Integration of Theory and Practice.
E-mediation can be a completely automated online dispute
resolution system with no interaction from a third party at all.
But e-mediation is more likely to resemble traditional facilitative
mediation, delivered at a distance. Thanks to video conferencing
services such as Skype, Zoom and Google Hangouts, parties can now
easily and cheaply communicate with one another in real time, while
also benefiting from visual and vocal cues see author’s his article
on “using online dispute resolution to resolve workers
conflict”. Early research results suggest that
technology-enhanced mediation can be just as effective as
traditional meditation techniques. Moreover, parties often find it
to be a low-stress process that fosters trust and positive
emotions.
Written by Ikechukwu Onuoma
When parties involved in a serious conflict want to avoid a
court battle, there are types of mediation can be an effective
alternative. In mediation, a trained mediator tries to help the
parties find common ground using principles of collaborative,
mutual-gains negotiation. We tend to think mediation processes are
all alike, but in fact, mediators follow different approaches
depending on the type of conflict they are dealing with.
Facilitative Mediation
In facilitative mediation or traditional mediation,
a professional mediator[1] attempts to
facilitate negotiation between the parties in conflict. Rather than
making recommendations or imposing a decision, the mediator
encourages disputants to reach their own voluntary solution by
exploring each other’s deeper interests. In facilitative mediation,
mediators tend to keep their own views regarding the conflict
hidden.
Court-Mandated Mediation
Although mediation is typically defined as a completely
voluntary process, it can be mandated by a court that is interested
in promoting a speedy and cost-efficient settlement. When parties
and their Lawyers are reluctant to engage
in mediation[2], their odds of
settling through court-mandated mediation are low, as they may just
be going through the motions. But when parties on both sides see
the benefits of engaging in the process, settlement rates are much
higher.
Evaluative Mediation
Standing in direct contrast to facilitative mediation is
evaluative mediation, a type of mediation in which mediators are
more likely to make recommendations and suggestions and to express
opinions. Instead of focusing primarily on the underlying interests
of the parties involved, evaluative mediators may be more likely to
help parties assess the legal merits of their arguments and make
fairness determinations. Evaluative mediation[3] is most often used
in court-mandated mediation, and evaluative mediators are often
Lawyers who have legal expertise in the area of the dispute though
it must not necessarily be so.
Transformative Mediation
In transformative mediation, mediators focus on empowering
disputants to resolve their conflict and encouraging them to
recognize each other’s needs and interests. First described by
Robert A. Baruch Bush and Joseph P. Folger in their 1994
book The Promise of Mediation, transformative
mediation is rooted in the tradition of facilitative mediation.
It’s tough to capture the essence of transformative mediation in a
paragraph or two. Transformative mediation focuses on helping
parties have the highest quality conversation possible, which
doesn’t necessarily mean focusing on needs or interests. It also
doesn’t necessarily mean either improving the relationship or
acquiring skills. It is based on the fact that conflict, at it’s
core, is a crisis in the interaction between the parties,
characterized by a diminished sense of control and a diminished
ability to understand the other. The transformative mediation
process, tends, very quickly, to allow parties to regain a sense of
control “empowerment” and a sense of understanding of or connection
to the other “recognition”. Those shifts bring with them more
constructive interaction, which is helpful, regardless of the
nature of the dispute. It allows for a conversation that allows all
parties to live up to their intentions to take good care of
themselves and to interact with the other constructively. It allows
for effective, efficient resolution of monetary disputes, for
healing of relationships, for clarifying the terms of the ending of
a relationship, for deciding on appropriate settlements of legal
claims, or for achieving whatever it is that the parties want to
pursue. The fundamental difference between the transformative
approach and others is that it acknowledges the relational nature
of all conflict. So, rather than choosing it because it fits a
certain type of dispute, it makes sense to choose it if one
understands that the conflict, whether between business partners,
consumers and corporations, injured plaintiffs and insurance
companies, or neighbors, is at its most important level a crisis in
the way humans are interacting with each other.
Med-Arb
In med-arb, a mediation-arbitration hybrid, parties first reach
agreement on the terms of the process itself. Unlike in
most mediations[4], they typically agree in
writing that the outcome of the process will be binding. Next, they
attempt to negotiate a resolution to their dispute with the help of
a mediator.
If the mediation ends in an impasse, or if issues remain
unresolved, the process isn’t over. At this point, parties can move
on to arbitration. The mediator can assume the role of arbitrator
(if he or she is qualified to do so) and render a binding decision
quickly based on her judgments, either on the case as a whole or on
the unresolved issues. Alternatively, an arbitrator can take over
the case after consulting with the mediator.
Arb-Med
In arb-med, another among the types of mediation, a trained,
neutral third party hears disputants’ evidence and testimony in an
arbitration; writes an award but keeps it from the parties;
attempts to mediate the parties’ dispute; and unseals and issues
her previously determined binding award if the parties fail to
reach agreement, writes Richard Fullerton in an article in
the Dispute Resolution Journal.
The process removes the concern in med-arb about the misuse of
confidential information, but keeps the pressure on parties to
reach an agreement, notes Fullerton. Notably, however, the
arbitrator/mediator cannot change her previous award based on new
insights gained during the mediation.
E-mediation
In e-mediation, a mediator provides mediation services to
parties who are located at a distance from one another, or whose
conflict is so strong they can’t stand to be in the same room,
write Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a
chapter in the book Advancing Workplace Mediation Through
Integration of Theory and Practice.
E-mediation can be a completely automated online dispute
resolution system with no interaction from a third party at all.
But e-mediation is more likely to resemble traditional facilitative
mediation, delivered at a distance. Thanks to video conferencing
services such as Skype, Zoom and Google Hangouts, parties can now
easily and cheaply communicate with one another in real time, while
also benefiting from visual and vocal cues see author’s his article
on “using online dispute resolution to resolve workers
conflict”. Early research results suggest that
technology-enhanced mediation can be just as effective as
traditional meditation techniques. Moreover, parties often find it
to be a low-stress process that fosters trust and positive
emotions.
Written by Ikechukwu Onuoma