Mediation and Arbitration Chambers

Mediator Styles

Mediation is not all the same. Mediators adopt, either by training or inclination, different approaches to assisting the parties to reach a resolution of their dispute. The range of approaches vary between a “directive” or “evaluative” and a “transformative” mediation style.

EVALUATIVE MEDIATION 

This is the most common approach of ex-judicial officers or senior lawyers who act as mediators. They adopt a legalistic approach of attempting to identify “right” and “wrong” based on their knowledge or expectation of a likely decision by a court on the facts as they understand them. These mediators tend to stay aloof from the personal interaction and emphasise the need for settlement and move parties toward that goal.

This leads to solution-oriented activity of defining the problem, the evaluation of the parties’ relative positions and then the suggestion of possible outcomes. These mediator will often separate the parties, after an initial welcome, into separated discussions (caucuses) conducted in separate rooms. The mediators often act as “human emails” flitting back and forth between the rooms, offering advice, encouragement and trading offers.

This focus on settlement leads to an approach of categorising the outcome simply in monetary terms and then an attempt to “narrow the difference” between the party’s respective positions by a process of structured trade-offs. Success is defined by reaching an agreement. But often these “agreements” are devoid of real benefits to either party. This is accepted under the mantra of “nobody ever gets what they want” or “everybody has to suffer some pain” to get a resolution, better described as a lose-lose.

TRANSFORMATIVE MEDIATION 

Transformative mediators believe that conflict presents opportunities for people to change (transform) their interactions with others. By comparison with the evaluative mediator, the transformative mediator believes that they add value by not defining the mediation simply as a alternate legal process, They see, first and foremost, the human conflict which is often viewed through a legal prism. However, most disputes are far wider than merely a debate about possible legal interpretations.

The transformative mediator’s skill lies in avoiding a narrow focus solely on the parties (legal) positions and an outcome based solely on a expectation of a likely “pay-out”. Remembering that the parties were once in a contractual relationship or partnership of mutual support, their focus is on opening up the discussion and sharing the party’s perspectives to include all relevant considerations.

Rather than being predominantly focussed on a “Decision” orientation, which ignores the totality of the conflict, the transformative mediator adopts a “Design” orientation. Recognising that conflicts are constructive opportunities for growth, change and expanded possibilities, they assist the parties to explore interests to minimise disagreement. By allowing a wider discussion of what each party seeks to achieve as a result from the mediation, they assist the parties fashion a different outcome from the initial positions. An outcome that can provide value for each person according to their interests. This is often described as a win-win.