This article is by Katie Shonk, from the Harvard Project on Negotiation
When parties involved in a serious conflict want to avoid a court battle, 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. Before choosing a mediator, consider the various styles and types of mediation that are available.
In facilitative mediation, or traditional mediation, a professional mediator 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.
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 attorneys are reluctant to engage in mediation, 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 benefits to engaging in the process, settlement rates are much higher.
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 is most often used in court-mandated mediation, and evaluative mediators are often attorneys who have legal expertise in the area of the dispute.
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. At its most ambitious, the process aims to transform the parties and their relationship through the process of acquiring the skills they need to make constructive change.
In med-arb, a mediation-arbitration hybrid, parties first reach agreement on the terms of the process itself. Unlike in most mediations, 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 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.
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 misuse of confidential information, but keeps pressure on parties to reach agreement, notes Fullerton. Notably, however, the arbitrator/mediator cannot change her previous award based on new insights gained during the 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, write the chapter’s authors. Thanks to videoconferencing services such as Skype and Google Hangouts, parties can now easily and cheaply communicate with one another in real time, while also benefiting from visual and vocal cues. Early research results suggest that technology-enhanced mediation can be just as effective as traditional mediation techniques. Moreover, parties often find it to be a low-stress process that fosters trust and positive emotions.
Comment by Mike Gregory
Always select a professional mediator who meets all the qualifications of Texas Civil Practice & Remedies Code Section 154.052. If the
case involves the parent-child relationship, the mediator must meet the requirements of Section 154.052(b): the mediator must have taken an additional 24 hours of training in the fields of family dynamics, child development, and family law, including a minimum of four hours of family violence dynamics training developed in consultation with statewide family violence advocacy organization. The family violence requirement was added September 1, 2017, with a compliance date of January 1, 2018. If your family law case involves the parent-child relationship, please determine if the mediator is fully qualified under Sec. 154.052.If you don’t get an agreement, how will you explain to your client that your mediator was not qualified to be an impartial third party?