There are a number of different mediation processes that an experienced mediator can use to resolve a dispute. In most commercial disputes, either facilitative or evaluative mediation is used, with a less common third option of transformative mediation. We look at the differences.
In facilitative mediation, the mediator helps the parties to reach their own agreed solution by asking questions to determine each side’s points of view and ideas. The emphasis is on the parties themselves taking control of the outcome, rather than their lawyers or the mediator.
The sessions will be structured by the mediator, and will involve the gathering of information, focus on the common ground between the parties, creation of workable options, discussion of the options and putting together an acceptable final agreement.
The aim of facilitative mediation is to help everyone agree on a workable, long-term solution. The mediator does not offer any opinion or advice, but steers the process, helping both sides find and analyse the available options.
The mediator does not opine on the likely outcome, should the matter go to court but guides the parties to create their own acceptable result. This sort of mediation requires substantial skill on the part of the mediator in enabling the sides to come to a conclusion, however when properly done it can be very successful, giving the parties a sense that the outcome is of their own making, which in turn creates a greater likelihood of long-term satisfaction.
Evaluative mediation is based on the legal idea of fairness, and the mediator will assess each party’s evidence and explain any weaknesses in their case. The mediator considers the legal rights and the parties’ lawyers are usually actively involved in the process.
Meetings are often conducted separately with each side. The mediator can make recommendations and advise on what would be a fair and reasonable result, and what a court would be likely to order if the case was heard.
Transformative mediation relies on standing in the other party’s shoes to help the parties recognise each other’s needs and point of view and critically examine the possibilities. It is more similar to facilitative mediation than the evaluative form and aims to help the two sides make the constructive changes needed to transform their relationship. For this reason, it is used when the parties will be in ongoing and indefinite communication.
Resolving disputes with mediation
It is important to choose a skilled mediator who has experience of all mediation methods. They will be able to suggest which method of mediation is likely to be most suitable for achieving a resolution which enables the parties to avoid litigation and even resume a productive relationship with each other.
Good mediators will be alert to the personalities in the room, the nature of the dispute and the relationships between the parties and will adapt their style to deal with the dispute at hand, tailoring their approach to maximise the chances of reaching a solution that is acceptable to both sides.
At Lux Mediation, we favour a robustly facilitative approach, testing propositions, playing devil’s advocate and finding the ingredients that can move a dispute along to a successful conclusion.
If you would like to explore whether mediation can help you resolve a dispute, please call Lux-Mediation on 07876 232 305 or email firstname.lastname@example.org.