Comparing Mediation Models

//Comparing Mediation Models
Comparing Mediation Models Rina Goodman 2018-02-13T11:00:08-08:00

“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. Both are found in Divorce Mediation, Family Mediation, Business Mediation, & Workplace Mediation. Here are some of the primary characteristics which differentiate the two:

Facilitative Mediation

Bargaining-Based Mediation

1. Goal: To facilitate Collaborating/Integrating negotiation between the parties Goal: To get a fair agreement through compromising
2. Parties’ decisions are “interest-based,” i.e., “win/win.” Parties’ decisions are law-based, so that each issue resolved is “win/lose.”
3. Parties meet jointly with the mediator. Communication is direct.
Parties control the timing and nature of offers.
Parties meet separately with the mediator. Communication is through the mediator as intermediary who relays messages, decides what information is helpful to settlement.
4. Parties may talk about feeling, understandings and expectations. Parties’ conversations involve facts and the law.
5. 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 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.
 6. 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. Parties are represented and accompanied by counsel.
7. Can be used before litigation is initiated and at subsequent stages. Generally regarded as most effective after completion of discovery.
Advantages:

  • Encourages constructive communication and mutual understanding between the parties, enhancing the possibility of a healthier future relationship.
  • Provides opportunity for parties to address concerns that may not be addressed by legal solutions.
  • Provides opportunity for mutually beneficial agreements, reducing the chances of a “win/lose” outcome.
  • Conflicts and disputes can be resolved early on, before fears are heightened and parties are entrenched in positions.
  • Parties control costs by using one trusted “neutral” financial, mental health,
    legal, or other professional.
Advantages:

  • Provides a familiar setting for lawyers who are more comfortable addressing the facts, evidence, and the law, rather than emotions.
  • Effective when parties are focused on highly divergent perceptions of fact or law.
  • Effective when there is a distributive issue, limited resources, and a creative solution is not in sight or not available.
  • Provides insight into how a judge migt view the legal strength and weaknesses of one’s position.
  • Often can be completed in less time than other types of mediation.
Disadvantages:

  • A facilitative process may take longer to resolve than an evaluative process.
  • Lack of interest in a continuing relationship may make the process less desirable for individuals desiring a quick and clean resolution.
  • Parties rely on the mediator’s skills to help them reach agreement despite high conflict and strongly divergent views.
  • May not be suitable for parties who want mediator to weigh-in on fairness and application of the law.
Disadvantages:

  • Heavy reliance on facts, law, and evidence as well as competitive frame result in higher costs for experts, since each party pays for his/her own expert opinion and advice.
  • Evaluative role of mediator can undermine party’s confidence in mediator’s neutrality and undermines party’s power of self-determination.
  • Narrow focus on “the law” results in limited range of possible settlement outcomes.
  • Positional bargaining may escalate conflict and produce impasse.
  • Tendency to favor shuttle negotiations (parties kept in separate room with mediator “shuttling” back and forth) with lawyers in control means that parties do not engage in information exchange or “brainstorming” solutions.
  • Narrow focus on lega 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.

Fact vs. Fiction

There is no shortage of myths about Facilitative Mediation. The table below dispels some of the more commonly held myths.

Myths

Truths

1. Mediation cannot work when there are power imbalances. The mediator’s training enables her to insure that all parties feel empowered so that all views and concerns are heard and considered. When there is an imbalance of knowledge, understanding, and information, the mediator helps the parties to identify this so that it can be addressed through complete disclosure of finances, full explanations, clarifications, and referrals to consulting attorneys and other subject matter experts. Financial imbalances also can be addressed by the parties with interim agreements so that the parties can attend fully to the mediation process and by longer-term solutions that are incorporated into the parties’ final agreements.
2. Discovery is not allowed in mediation. While there is no formal discovery in mediation, usually the parties will agree to exchange documents and information requested by each other or the mediator. In cases involving low levels of trust, parties can agree to have an impartial third party, other than the mediator, review documents to insure that important information is not being withheld.
3. A facilitative mediator will make me stay in the same room as the other party. False. Although facilitative mediation usually works best when the parties work directly with each other, most facilitative mediators will accommodate parties’ wish to meet privately and, in appropriate situations, they may even recommend it.
4. High-conflict cases cannot be mediated. It is true that there are many couples who are not suitable candidates for mediation; they may be locked in a high-conflict relationship from which they will not—or cannot—disengage in order to perform the tasks necessary to mediate. Or one of the parties may have a personality disorder that will make it difficult, if not impossible, for that person to meaningfully participate in mediation. On the other hand, often the conflict is related to the reason leading to the divorce, such as the revelation of an affair, or the shock, fear, and anguish brought on by the news that the marriage is ending. Parties should not decide to litigate because they are angry or frightened. Mediation gives them control over the pace of the process, as well as the outcome.
5. Facilitative mediators lack sufficient expertise to handle high-stake cases. Like attorneys, mediators will help their clients identify appropriate experts to help them understand and make decisions about complex issues involving pension valuation, business appraisals, taxation, psychology, and so on.
6. Mediation will be expensive. In court, I can ask for attorney fees. Mediation usually costs between $3,000 and $5,000 and these fees usually are shared by the parties, as are most fees for experts. Parties can decide whether to share or pay thier own fees for consulting and reviewing attorneys. Parties who pursue litigation with the hope that the other party will pay hi/her attorney fees, must recognize that such awards usually are determined by need and ability to pay. Also, they are discretionary. Finally, litigation costs per person usually are, at a minimum, around $15,000 and often go much higher ($30,000 and upwards).

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