Given that the role of a mediator is to assist parties in dispute reach their own mutually agreeable settlement, several distinct styles of mediation have developed over the years. Not only is it important for parties to choose the right mediator for their situation, it’s equally important that the parties find the right style of mediation that best fits their specific needs.
What are the most commonly used styles of mediation?
While there are countless different ways a mediation can be conducted, we will focus on the two most common styles that are used as the foundation for how the mediator controls and directs the proceedings.
Facilitative Mediation
Often referred to as the “original” or “traditional” style of mediation, mediators who employ a facilitative style of mediation focus on helping the parties negotiate amongst themselves in order to create mutually agreeable solutions to their disputes. The facilitative mediator generally does not insert his personal opinions on the strengths or weaknesses of the parties’ positions, comment on the likely outcome that would result if the parties were to take their dispute to court, or make recommendations for how the parties can resolve their issues.
With the facilitative style, the mediator oversees the process, but the parties are in charge of the outcome. Facilitative mediators usually hold joint sessions with all parties present so that the parties can hear and understand each other’s points of view. In contrasts to other styles of mediation, facilitative mediators want the parties themselves to have the major influence on any decisions that are made, rather than the parties’ attorneys.
Evaluative Mediation
Standing in contrast to the facilitative mediation style, the evaluative mediation style more closely resembles that of a settlement conference that might take place in a judge’s chambers. Evaluative mediators assist the parties in reaching a resolution by pointing out the strengths and weaknesses of their positions and will often offer their predictions of the likely outcome if the matter were to be litigated. Rather than leaving the development of resolution ideas to the parties, evaluative mediators tend to offer their own recommendations as to how the parties can resolve their issues.
While facilitative mediators focus on the deeper needs and interests of the parties, evaluative mediators focus on the parties’ legal rights and tend to evaluate the case based on legal concepts of fairness. Evaluative mediators prefer to meet with each party separately (often referred to as “shuttle diplomacy”) and help them evaluate their individual legal positions as well as the “costs vs. benefits” of pursuing a legal resolution rather than settling through mediation. The evaluative mediator both structures the process and directly influences the outcome of mediation.
Why are there multiple styles of mediation?
Some mediators choose to adhere to the philosophies of just one technique. However, most skilled, experienced mediators combine techniques from different styles and will oftentimes shift between styles depending on how successfully the mediation session progresses. If the mediator sees that the use of one particular style has resulted in an impasse, he may choose to shift tactics and employ a different style in order to attempt to keep the parties moving forward towards resolution.
What are the pros and cons to each style?
Supporters of the facilitative style believe that mediations are meant to empower the parties and help them take responsibility for finding their own solutions to their issues. On the other hand, those in favour of the evaluative style say that facilitative mediations take too long and often result in the parties being unable to reach a mutually agreeable resolution of their dispute. Ultimately, it is up to the parties (and their attorneys) to evaluate the pros and cons of each style and then choose a skilled mediator who is experienced and capable of utilizing both techniques.
Our team at Hugill & Ip has extensive experience in dealing with Mediations and other Dispute Resolution issues – so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.
