Top Techniques Employed By Mediation Experts By Ikechukwu Onuoma

When parties involved in a serious conflict want to avoid a court battle, there are types of mediation can be an effective alternative. In mediation, a trained mediator tries to help the parties find common ground using principles of collaborative, mutual-gains negotiation. We tend to think mediation processes are all alike, but in fact, mediators follow different approaches depending on the type of conflict they are dealing with.

Facilitative Mediation

In facilitative mediation or traditional mediation, a professional mediator attempts to facilitate negotiation between the parties in conflict. Rather than making recommendations or imposing a decision, the mediator encourages disputants to reach their own voluntary solution by exploring each other’s deeper interests. In facilitative mediation, mediators tend to keep their own views regarding the conflict hidden.

Court-Mandated Mediation

Although mediation is typically defined as a completely voluntary process, it can be mandated by a court that is interested in promoting a speedy and cost-efficient settlement. When parties and their Lawyers are reluctant to engage in mediation, their odds of settling through court-mandated mediation are low, as they may just be going through the motions. But when parties on both sides see the benefits of engaging in the process, settlement rates are much higher.

Evaluative Mediation

Standing in direct contrast to facilitative mediation is evaluative mediation, a type of mediation in which mediators are more likely to make recommendations and suggestions and to express opinions. Instead of focusing primarily on the underlying interests of the parties involved, evaluative mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations. Evaluative mediation is most often used in court-mandated mediation, and evaluative mediators are often Lawyers who have legal expertise in the area of the dispute though it must not necessarily be so.

 Transformative Mediation

In transformative mediation, mediators focus on empowering disputants to resolve their conflict and encouraging them to recognize each other’s needs and interests. First described by Robert A. Baruch Bush and Joseph P. Folger in their 1994 book The Promise of Mediation, transformative mediation is rooted in the tradition of facilitative mediation. It’s tough to capture the essence of transformative mediation in a paragraph or two. Transformative mediation focuses on helping parties have the highest quality conversation possible, which doesn’t necessarily mean focusing on needs or interests. It also doesn’t necessarily mean either improving the relationship or acquiring skills. It is based on the fact that conflict, at it’s core, is a crisis in the interaction between the parties, characterized by a diminished sense of control and a diminished ability to understand the other. The transformative mediation process, tends, very quickly, to allow parties to regain a sense of control “empowerment” and a sense of understanding of or connection to the other “recognition”. Those shifts bring with them more constructive interaction, which is helpful, regardless of the nature of the dispute. It allows for a conversation that allows all parties to live up to their intentions to take good care of themselves and to interact with the other constructively. It allows for effective, efficient resolution of monetary disputes, for healing of relationships, for clarifying the terms of the ending of a relationship, for deciding on appropriate settlements of legal claims, or for achieving whatever it is that the parties want to pursue. The fundamental difference between the transformative approach and others is that it acknowledges the relational nature of all conflict. So, rather than choosing it because it fits a certain type of dispute, it makes sense to choose it if one understands that the conflict, whether between business partners, consumers and corporations, injured plaintiffs and insurance companies, or neighbors, is at its most important level a crisis in the way humans are interacting with each other.

Med-Arb

In med-arb, a mediation-arbitration hybrid, parties first reach agreement on the terms of the process itself. Unlike in most mediations, they typically agree in writing that the outcome of the process will be binding. Next, they attempt to negotiate a resolution to their dispute with the help of a mediator.

If the mediation ends in an impasse, or if issues remain unresolved, the process isn’t over. At this point, parties can move on to arbitration. The mediator can assume the role of arbitrator (if he or she is qualified to do so) and render a binding decision quickly based on her judgments, either on the case as a whole or on the unresolved issues. Alternatively, an arbitrator can take over the case after consulting with the mediator.

Arb-Med

In arb-med, another among the types of mediation, a trained, neutral third party hears disputants’ evidence and testimony in an arbitration; writes an award but keeps it from the parties; attempts to mediate the parties’ dispute; and unseals and issues her previously determined binding award if the parties fail to reach agreement, writes Richard Fullerton in an article in the Dispute Resolution Journal.

The process removes the concern in med-arb about the misuse of confidential information, but keeps the pressure on parties to reach an agreement, notes Fullerton. Notably, however, the arbitrator/mediator cannot change her previous award based on new insights gained during the mediation.

E-mediation

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 they can’t stand to be in the same room, write Jennifer Parlamis, Noam Ebner, and Lorianne Mitchell in a chapter in the book Advancing Workplace Mediation Through Integration of Theory and Practice.

E-mediation can be a completely automated online dispute resolution system with no interaction from a third party at all. But e-mediation is more likely to resemble traditional facilitative mediation, delivered at a distance. Thanks to video conferencing services such as Skype, Zoom and Google Hangouts, parties can now easily and cheaply communicate with one another in real time, while also benefiting from visual and vocal cues see author’s his article on “using online dispute resolution to resolve workers conflict”. Early research results suggest that technology-enhanced mediation can be just as effective as traditional meditation techniques. Moreover, parties often find it to be a low-stress process that fosters trust and positive emotions.

Written by Ikechukwu Onuoma