Many clients and attorneys are confused about what mediation is and is not, and what they will get if they submit their dispute to mediation. This results from many styles of mediation being practiced, and very little being done to distinguish these styles for the public.
In the 1960’s and 1970’s, there was only one type of mediation being taught and practiced, now often called "Facilitative Mediation"1 In this type of mediation, the mediator assists the parties in reaching a mutually agreeable resolution by asking questions; validating and normalizing parties’ points of view; searching for interests (that is, those needs and issues behind the position a party takes) rather than simply working with those positions; and assisting the parties in finding options and analyzing those options. In no instance does the facilitative mediator make a recommendation to the parties or give his or her own advice or opinion as to the outcome of the case or what a court would do with the case.
Facilitative mediators want to ensure that parties do not feel coerced into agreement, but rather come to agreements based on information and understanding. In practice, facilitative mediators tend to meet in joint meetings with all parties present so that they can hear each other’s points of view in order to help them change their positions. Facilitative mediation grew up in the era of volunteer dispute resolution centers, in which the volunteer mediators had no substantive expertise concerning the area of the dispute, and in which often there were no attorneys present. The volunteer mediators came from all backgrounds.
In the late 1980’s and 1990’s, as mediation became more popular and started to be court ordered and court referred, the practice of "Evaluative Mediation"2 came into being. In a process modeled on settlement conferences held by judges, an evaluative mediator assist the parties in reaching resolution by pointing out the weaknesses of their cases, and evaluating what a judge or jury would be likely to do in that case. In some mediations, an evaluative mediator might make a formal or informal recommendation to the parties as to the outcome of the issues. Evaluative mediators are more concerned with the legal rights of the parties than with satisfying their interests, and are more concerned with legal fairness than subjective fairness. In practice, evaluative mediators meet more in separate "shuttle diplomacy" meetings with the parties, in order for the mediator to give the parties more information about their legal odds, and the costs of pursuing a legal resolution.
Evaluative mediation grew up in an era of court-mandated or court-referred mediation where attorneys normally were present during the mediation and the mediators were usually private mediators either picked by the parties or from a court roster. Many of the private mediators are lawyers or business people.3
Transformative mediation is the newest concept of the three, named such by Folger and Bush in their book THE PROMISE OF MEDIATION.4 Although it is a new concept, it hails back to the early days of volunteer mediation in that it is based on the values of "empowerment" of each of the parties as much as possible, and "recognition" by each of the parties of the other parties’ needs, interests, values and points of view. The transformative mediator follows the parties’ interests in how they would like the process of mediation to be, staying open to the possibilities of empowerment and recognition. The potential for transformative mediation is that any or all parties or their relationships may be transformed during mediation. In practice, transformative mediators meet with parties together, since only they can give each other "recognition".
Styles vs. Continuum
Samuel Imperati and Leonard Riskin believe these styles are more a continuum than distinct differences, from least interventionist to most interventionist. The Northwest Chapter SPIDR Survey and other less formal surveys have noted that most mediators use some facilitative and some evaluative techniques, more and less based on individual skills and predilections. Folger and Bush see more distinct differences in styles, particularly the difference of "top-down" vs. "bottom-up" mediation. That is, evaluative and facilitative mediation may take legal information too seriously, and that resolutions coming from the parties are much more deep, lasting, and valuable.
Pros and Cons
There are many arguments for and against each of these styles. Some of these arguments are that: Transformative and facilitative mediation take longer; evaluative is most time-efficient. Evaluative mediation tends toward being very directive, if not coercive; facilitative and transformative rely on self-determination of the parties. Facilitative and transformative mediation look at underlying issues and the interests and needs of the parties; evaluative looks at the parties’ positions and their legal rights.5 Evaluative mediation requires some substantive expertise on the part of the mediator; facilitative and transformative do not. There is a chance that the mediator’s evaluation in evaluative mediation could be wrong;6 whereas in facilitative and transformative mediation the parties would not hear the mediator’s evaluation of their case. Early or too-harsh evaluation may not be helpful; if there is no evaluation, the parties may be stuck in impasse. Some people feel that parties want facilitative mediation for themselves, but evaluative or transformative mediation for the other party.
Mediators tend to feel strongly about these styles for mediation. Most mediation training still teaches the facilitative approach, although some attorney-mediators train in the evaluative model, and Folger and Bush have a complement of trainers teaching the transformative approach. Many mediation standards (from national and state mediation organizations, and state legislative and judicial mediation programs) are silent on this issue; others prohibit evaluation, and a few require it. For example, the Mediation Council of Illinois Standard IV (C) Best Interests of Children states: "While the mediator has a duty to be impartial, the mediator also has a responsibility to promote the best interests of the children and other persons who are unable to give voluntary, informed consent.......If the mediator believes that any proposed agreement does not protect the best interest of the children, the mediator has a duty to inform the couple of his or her belief and its basis."6
Another example of these strong feelings is that in 1997, Florida’s professional standards for mediators were reviewed, and the committee got stuck on the issue of evaluation. The current rule says "a mediator should not offer information that a mediator is not qualified to provide" (Rule 10.090(a)) and "a mediator should not offer an opinion as to how the court in which the case has been filed will resolve the dispute" (Rule 10.090(d)). The committee came out with two options for a new standard on this issue: Option One would prohibit giving opinions except to point out possible outcomes of the case; Option Two states that the mediator could provide information and advice the mediator is qualified to provide, as long as the mediator does not violate mediator impartiality or the self-determination of the parties. After receiving comments on these two options, both were withdrawn and the committee is trying again.
There seem to be more concerns about evaluative and transformative mediation than facilitative mediation. Facilitative mediation seems acceptable to almost everyone, although some find it less useful or more time consuming. However, much criticism has been leveled against evaluative mediation as being coercive, top-down, heavy-handed and not impartial. Transformative mediation is criticized for being too idealistic, and not useful for business or court matters. Evaluative and transformative mediators, of course, would challenge these characterizations. Imperati, for example, sees evaluative mediation as ranging from soft to hard: from raising options, to playing devil’s advocate, to raising legal issues or defenses, to offering opinions or advice on outcomes. Folger and Bush see transformative mediation as ultimately flexible and suited to all types of matters.
I believe there is room in mediation practice for many styles, including facilitative, evaluative and transformative mediation. Each has its usefulnesses. Imperati strongly believes that most mediators use a combination of these styles, depending on the case and the parties in mediation, as well as their own main approach to mediation. Some sophisticated mediators advise clients and attorneys about the style they think would be most effective for their case. Some parties and attorneys are starting to be sophisticated enough to know the difference between types of mediation and to ask mediators for a specific type in a specific case. Mediators should be articulating to parties and attorneys the style(s) they generally use, and the assumptions and values these styles are based on. This will allow clients to be better and more satisfied consumers, and the field of mediation to be clearer on what it is offering.
1 From Leonard L. Riskin, Mediator Orientations, Strategies, and Techniques, ALTERNATIVES TO THE HIGH COST OF LITIGATION 111 (1994).
2 See Northwest Chapter SPIDR Survey results published in Samuel J. Imperati, Mediator Practice Models: The Intersection of Ethics and Stylistic Practices in Mediation, 706 WILLIAMETTE LAW REVIEW 33:3 Summer 1997.
3 Robert A. Baurch Bush and Joseph P. Folger, THE PROMISE OF MEDIATION, Jossey-Bass, 1994.
4 Power, rights and interests-based systems are articulated in William L. Ury, Jeanne M. Brett and Stephen B. Goldberg, GETTING DISPUTES RESOLVED, Jossey-Bass, 1988.
5 This is often a malpractice issue for mediation.
6 See Association of Family and Conciliation Courts/Academy of Family Mediators Standards of Practice, Joint Committee Standards of Practice (American Arbitration Association, SPIDR and ABA), and Mediation Council of Illinois Standards of Practice.
Zena D. Zumeta graduated from the University of Michigan Law School and practiced labor law until becoming a mediator in 1981. A member of the Michigan Bar, she is the owner of the Mediation Training and Consultation Institute and the Collaborative Workplace in Ann Arbor, Michigan. She is a past president of the Academy of Family Mediators (AFM) and past national board member of the Society of Professionals in Dispute Resolution (SPIDR). In addition to mediating and training mediators she is a facilitator, trainer and consultant for organizations.