Topic Three:

Models of Mediation Practice

Readings:

Alfini, J. 'Evaluative versus Facilitative Mediation' 24 Florida State University Law Review (1997) 919

Menkel-Meadow 'The Many Ways of Mediation' Negotiation Journal (1995) 217, @228-230 & 236-238

Lande, J. 'Lawyering and Mediation' 24 Florida State University Law Review (1997) 839 @ 849-854

The Code of Conduct for mediators in the Ottawa / Carleton court-annexed mediation program

Models of mediation are not monolithic. Some mediators in some circumstances will offer the parties an evaluation of the possible legal consequences of their action. Others will be clear from the outset that their role is facilitative only, and that they will not offer a legal or other opinion on the facts. Still others will engage in some 'reality-checking' with parties where they will press them to justify their views on the possible legal consequences of their action or defence - but stop short of expressing a personal view on the strengths or weaknesses of their case. This spectrum of mediation practice is sometimes referred to as the facilitative/evaluative spectrum (or the 'orchestrator'/'deal-making' spectrum).

In practice most mediators line up somewhere along this continuum, although their approach may differ from case to case and depending on party expectations and needs. It is possible to clarify the role to be played by the mediator (for example, whether they will offer a legal opinion on the merits of the case) in offering evaluation in advance of the mediation and it is good practice to do so.

Although there are many hybrid models, most mediators who practise using a 'facilitative' style (see Menkel-Meadow, 1995, excerpted in the Course Manual) generally emphasise

1. Wide-ranging discussion over party interests and needs
2. The active participation of the client
3. Discussion in joint session where the parties can hear one another describe their personal understanding of the conflict, their rationale for the disputed behaviour, their needs, hopes, concerns etc (although private caucus will also be used at selective points, for example for option generation)

Within a broadly-defined 'facilitative' style, there are further differences which may be important to identify in order to select the 'right' mediator for your client. Some facilitative mediators would describe themselves as oriented to 'problem-solving', in other words, they will work with you and your client with the explicit objective of achieving a settlement to the dispute. These mediators may also wish to participate in drawing up any final settlement agreement. Their focus will be on resolving the present issue and ensuring that the future relationship between the parties is free from conflict. In its most extreme form, this type of mediation intervention is highly instrumental and agreement-oriented - what Menkel-Meadow (1995) (see the excerpt in the Course Manual) describes as a 'pragmatic' style of mediation.

Critics of the 'problem-solving' approach suggest that this encourages an unhealthy focus on getting the immediate issue dealt with, at the expense of building a better long-term relationship. One influential source of this critique is the work of Robert Baruch Bush and Joseph Folger, popularised in their book, 'The Promise of Mediation' (1995) (this is one of the books reviewed in the Menkel-Meadow (1995) piece in the Course Manual). Baruch Bush and Folger's work has led some mediators to describe themselves as adopting a 'transformative' style (Menkel-Meadow, 1995, see the Course Manual). This approach aims to fundamentally alter the relationship between the parties by enabling each to understand and empathise with the other. The consequence may, or may not, be settlement of the outstanding issue or issues but that is secondary to dealing with the challenges of the relationship itself. Some writers have described a similar model as a 'therapeutic' style of mediation and it is most often encountered in the context of family and matrimonial conflict.

Some mediators and mediation scholars do not see a contradiction between a 'transformative' or 'therapeutic' approach and a 'problem-solving' orientation. Both are essentially facilitative rather than evaluative. Parties come to mediation hoping to resolve their dispute and this is inevitably part of the agenda for the mediator and the parties alike. What do you think of Professor Menkel-Meadow's critique of the 'transformative' model in the second excerpt from her review in the Course Manual?

With the advent of court-connected mediation programs in Ontario and elsewhere there are legitimate concerns, however, that mediators will be evaluated according to their 'success rate', where 'success' is defined exclusively or primarily by the number of cases that reach settlement.

An 'evaluative' approach to mediation appears to be clearly distinguishable from a 'facilitative' approach since it affords the mediator the authority to offer his or her own views on the merits of the parties dispute. The mediator's evaluation will not be binding on the parties but it may nonetheless be a potent factor in persuading one or both sides to settle. You should also note that even the most 'facilitative' mediators will sometimes practice 'reality-testing' - questioning one or both parties about their assumptions of a positive legal outcome - which, while stopping short of offering a formal evaluation, is generally the consequence of some (albeit tacit) evaluation by the mediator.

Although there are many hybrid models, most mediators who practise using a 'evaluative' style (see Menkel-Meadow, 1995, in the Course Manual) generally emphasise

1. Discussion that centres on legal arguments
2. Inevitably, most active participation by lawyers although their client would usually be expected to be present
3. Discussion in private caucus where each side can speak confidentially with the mediator about what they would be prepared to accept as settlement, and where the mediator can press each party on what he or she perceives to be their weaknesses.

Evaluative mediation has been described as rights-based mediation - or even as non-binding arbitration. One writer (Alfini, 1995) who has studied the use of evaluative mediation in a court-connected program, has described it as 'hashing, bashing and trashing'. The 'shuttle diplomacy' of the evaluative mediator between the parties in private caucus sets up a very different dynamic from the facilitative approach and gives considerable power to the mediator to convey information and tone between the parties.

While an evaluative stye of mediation practice is probably dominant in private, commercial mediation practice, it is important to note that it is the facilitative model of mediation which is becoming increasingly common in court-annexed and court-connected programs (see the Code of Conduct for mediators in he Ottawa pilot program contained in the Course Manual).

There are some other important variations in mediation models that you should familiarise yourself with. For example, some mediators mediate alone, while others prefer co-mediate as a team (possibly a lawyer and a non-lawyer). Some mediators are willing to be flexible about process and essentially negotiate this with the parties; others impose a fairly rigid structure on the process rules and procedures. A critical variable is often whether the mediator is a private individual, or part of a larger institutional, bureaucratic or organisational structure (see Menkel-Meadow, 1995, in the Course Manual).

This is a good point at which to incorporate listening to the first lecture on the audiotape provided with the course materials. In this lecture, Rick Weiler discusses the different styles and models of mediation practice and what these mean for you and your client.

Please read the discussion in Alfini 'Evaluative versus Facilitative Mediation' (in the Course Manual) and consider when an evaluative approach, and when a facilitative approach, might be appropriate for effective dispute resolution.

When you have completed the readings and listened to the audiotape, please go to Discussion Room Three, 'Models of Mediation Practice'