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Different Approaches to Mediation.

Posted on 06/12/2015 · Posted in Mediation

Disputes that are going to be settled through mediation usually go through the following five stage process: the initial phase, the opening phase, the exploration phase, the negotiation phase, and finally the settlement or concluding phase. However, within this fairly structured process there are many different approaches to mediation itself, some of which are set out below.

Facilitative Mediation

Facilitative mediation is the original mediation approach, based on the mediator facilitating the negotiation between parties with the aim of reaching a long-lasting agreement. In facilitative mediation, the mediator asks questions, summarises positions and generally assists the two parties in coming to a resolution based on the information available. The mediator leads the process, but the parties are responsible for agreeing the outcome with the mediator’s help.

The aim of argument, or of discussion, should not be victory, but progress”
Joseph Joubert

Evaluative Mediation

In evaluative mediation, the mediator has a much greater part to play in determining the outcome of the mediation and the primary focus is to reach a quick deal. The mediator may make recommendations to each party, and the mediation approach is based much more on evaluating the legal position of each party.

Transformative Mediation

Transformative mediation is a relatively new approach based on the concept that the two parties’ relationship may be transformed during the mediation process. Like facilitative mediation this approach also empowers the parties to come to their own resolution, however parties also structure the mediation process (as well as the outcome) in this approach.

These are the three main approaches to mediation and each one is valid, offering its own unique pros and cons. Facilitative and transformative mediation approaches are often taken to help empower participants to take responsibility for the resolution of the dispute, while evaluative mediation helps parties understand their legal position. In reality, experienced mediators will probably use a combination of these styles depending on their individual approach as well as the specifics of the case and parties involved. Whilst the aforementioned are considered to be the more traditional approaches towards mediation, alternative dispute resolution is constantly evolving its practice. As such the following forms are also becoming more common:

Narrative Mediation

Narrative mediation is a relatively new style of mediation that centres on creating a new ‘story’ or ‘narrative’ to understand and reshape the conflict. This helps both parties to create distance from themselves and the events that provoked their dispute. The parties should then see the causes of their conflict with greater detachment and a fresher perspective. Narrative mediation is a very specific method of mediation so one must be certain to ask if their mediator has training in the narrative style if this is the style they prefer. Often narrative mediators will have a mental health background.

Med-Arb

Med-Arb is a blend of mediation and arbitration practices. Contrary to traditional mediations parties normally agree at the outset of the process that the outcome will be binding. The parties then attempt to negotiate a resolution through the help of a mediator. The usefulness of having such a written agreement is to assure that if the mediation ends in impasse, the process isn’t over and the parties can be confident that their conflict will be resolved. Thereupon the parties will move on to arbitration. The mediator will then take on the role of an arbitrator and formulate a binding decision quickly based on his or her judgements. In the case that a mediator is unqualified to proceed, a qualified practitioner may take over the case after meeting with the meditator.

E-meditation

E-mediation, or otherwise called Online Dispute Resolution (ODR) has many benefits for those with busy time schedules. In e-mediation, a mediator provides mediation services to parties who are located at a distance from one another or whose conflict is so strong that they cannot be in the same room. It can even be a completely automated online dispute resolution system with no human intervention. However, more often than not, e-mediation is more likely to resemble facilitative mediation, only delivered from afar.

E-mediation is both cost-effective and convenient. However, it has its drawbacks. Firstly it may not be suitable for those lacking in computer skills; Accessibility to e-mediation may present difficulties in lesser-developed countries, and it must be taken into account that lack of accessibility to technology is often paired with a distrust of online services. As such, skilled mediators should always take into account relevant socioeconomic factors of the two parties that may affect the appropriateness of such techniques and present their clients with alternatives. Secondly cyber space is prone to cyber crime. Consequently confidential information is less secure. With this in mind, business disputes in which the parties are concerned about protecting their trade secrets e-mediation may not be a suitable option.

At Expert Evidence all our experts are trained in all mediation approaches and have a wealth of experience in mediating successfully across multiple industries. Meet our Experts.

Expert Evidence Limited is a professional firm concentrating on the four main areas of dispute resolution; acting as expert witnesses in financial litigation, mediation, arbitration and adjudication. The firm has a civil, criminal and international practice and has advised in many recent cases. Areas of specialisation include banking, lending, regulation, investment, and tax.

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Disclaimer – Please confirm any of the above views with your solicitor. Expert Evidence takes no responsibility or provides any guarantee that the views above are correct for your particular case or jurisdiction.