Volume 1 • Issue 03 - Mediation Styles, Techniques, Methods

Posted by Site Staff on Thursday April 3, 2008

Mediation has taken an interesting twist.There are now numerous types with practitioners discussing which is the real mediation. Different types / styles are as follows:

Each is defined and explained as:

Problem Solving Mediation:

Focuses on resolving dispute or problem. The aim is to reframe incompatible needs and interests of the parties. The mediator following the stages as outlined by assisting in open communications.

In the opening statement the mediator advises the parties that the goal is to reach settlement through resolution of the dispute / problem. The purpose of this style is to assist the parties in developing a mutually acceptable resolution of the immediate dispute. The mediator assists in defining differences, moving the parties toward options. This style may well incorporate caucuses. Each stage of mediation as discussed is carefully followed.

The main aim here is settlement. Core elements of mediation remain intact; mediator neutrality, confidentiality and parties as the decision makers. The mediator in this style is facilitates communication between the parties assisting them through the
stages.

Facilitative Mediation:

This is classic mediation involving each discussed stage. The mediator assists parties to reach a solution and may use caucus as a tool, but will not be advising or pushing any agenda or points with the exception of the process of mediation itself. The parties here work together with the help of the mediator to reach resolution. As will be seen the above styles differ significantly from evaluative or transformative Mediation. Core elements of mediation remain in all styles. Mediators are to be neutral. The process is confidential and parties determine the outcome. What the reader must realize is that roles of mediators differ but not the process of mediation.

Evaluative Mediation:

Mediators in this type evaluate and assess the dispute reaching their own conclusions. Parties are the final decision makers regarding resolution. The mediator assists through discussing and suggesting their point of view and analysis; mediators here may discuss strengths and weaknesses of each parties position. In this style mediators are often experts in the field in which the dispute lies. This is not to say that the mediator uses muscle mediation; the purpose here is to assist parties in developing the stages toward resolution. The core elements of mediation remain the same with each stage followed.

Transformative Mediation

In 1994 A Promise of Mediation was authored by Joseph Folger and Robert A. Bush giving birth to Transformative Mediation. The goal is empowerment of the parties through recognition of the others needs and interests. The mediator here intervenes to keep parties on track through the stages and moments of recognition. Appreciating the other parties point of view enables recognition. Ground rules are set by the parties excepting for the mediators rules and regulations and the process The mediator gives no suggestion, opinions or advice but does call attention to moments of recognition and assists by furthering discussions between the parties. The mediator changes the nature of the dispute interaction by and through empowerment. Core elements of mediation remain intact with stages unchanged. The parties in this style direct the mediation. The idea is to keep parties focused on recognition of the other parties position and to keep them communicating through the options phase to resolution. Reality and some empathy through recognition play a role. Empowerment enables resolution; no party is asked to or has to change their position in this style.

The thrust here is to empower the parties to not only appreciate the other’s view but to also strengthen their abilities to handle conflict positively and productively. In this style the mediator must
be careful to listen closely to the parties conversation steering them through what they believe is important.

Court Ordered Mediation:

Through out the United States legislators in an attempt to lesson the heavy burden on the courts instituted court ordered mediation in domestic and some civil matters. Child custody, alimony, property settlement and visitation are now generally mediated outside of the courtroom through the courts mediation division. This occurs through judicial order. States now have Alternative Dispute Resolution statutes controlling same. One problem is limited time for the mediators; muscle mediation is often used. Parties can simply appear to comply with the order good intentions aside. In some courts mediators must close a certain number of cases per month.

This newsletter’s commentary on court ordered mediation is that there are inherently serious problems affecting parties. The foundation of the present Alternative Dispute Resolution process is the willingness of parties to sit down and work out solutions to disputes through the process. Court orders are the very antithesis of this; parties may comply with an order to prevent a contempt citation or angry judge. Mediators are under pressure to close cases. Muscle mediation is not unusual. A party can maneuver the system by showing up but not in good faith; if the mediator recognizes this fact then he / she reports same to the court and the issue(s) are back to square one with the court breathing down one of THE parties necks. Believe this writer when he states that some jurists loose their perspective and patience in this situation skewing balance of power and fairness. Parties can be forced
into positions they do not want to be in or would not otherwise accept. Parties in court ordered mediation have little time to present their side of the dispute as a result of scheduling and mediators who want to move on. This takes a lot away from development of the mediation stages and open meaningful communications. Judges may well have smaller dockets as a result but at what cost. This newsletter’s position is that with the heavy volume of domestic mediation there are parties who get lost in the shuffle no matter the original intention of this process.

Peer Mediation:

Violence, suicide, drug use and mayhem have been on the increase in grammar and high schools. Students now in many schools mediate their same age group in an attempt to improve self-esteem, empower through recognition of the others interests, issues and needs, opening lines of communication. Issues confronted are racial, fighting, gossip, cheating, theft, and personal relationship problems. Programs are developed in the schools to train student mediators and involve teachers on an organizational basis. Disputants in a peer mediation are encouraged to place themselves in the other’s shoes. Student mediators are trained to allow the parties to vent and summarize issues paying particular attention to the emotions evoked so the parties understand these difficulties. Confidentiality applies excepting for child abuse, and the present ability and intention to commit a crime. The student mediator will at the beginning of the process explain the ground rules and issues such as confidentiality; time must be allowed to allow the students to ask questions. Student mediators should be trained in and encouraged to complete the process with signed
agreements and follow up session(s).

These programs may require politicking by students, parents, faculty and administration. Time schedules and budgeting will have to be considered. A plan for educating the student population regarding the peer mediation will have to be instituted. Benefits in a process such as this can be a big; reducing existing problems and likely saving lives.

Grievance Mediation:

Generally grievance disputes are arbitrated which can be costly and time consuming. Industry is now utilizing mediation to resolve grievances. Needs and interests are facilitated through mediation stages and the process.

Separate sessions are held. The mediator after listening discerns underlying issues in the dispute suggesting options or areas which can be compromised.

Numerous companies are now utilizing this method of mediation; the coal industry has adopted it. Drug companies, retailers and large electrical companies; some unions accept this process in labor disputes.

Transcripts or records of these proceedings are not kept. Should mediation fail arbitration can be used; offers put forth in the mediation are not used in the arbitration. The incidence of success
in mediation of grievances is high. The Department of Labor in the United States Government has funded this method in numerous instances. Successes are due to a less adversarial atmosphere, and the parties can move on to arbitration if they so wish with no penalty.

If there are no facts in dispute then arbitration “may” serve the parties better such as a summary judgment procedure at law. All decisions are those of the parties; should positions be firm and positioned with no facts in dispute arbitration may be called for; here the mediation process is likely a waste of time. Parties make this decision. Generally union officials and designated company persons are the parties.

This particular procedure can also be incorporated into a union contract. Utilization of this process will also educate company and union officials regarding communication of this nature; the benefits of discussing interests and needs along with exploration of all feasible options teach that resolution of problems is in their reach.

THANK YOU FOR READING THIS MONTH’S NEWSLETTER.PLEASE COME BACK FOR THE MAY, 2008 ISSUE WHERE WE WILL COVER ATTITUDES TOWARD EACH MEDIATION METHOD AND ARTICLES REGARDING WHAT IS OCCURRING IN THE MEDIATION FIELD. SOON THE STAFF WILL PRESENT ALTERNATIVE DISPUTE RESOLUTION (ADR) STATUTES OF EACH STATE.

SUPPLEMENTS WILL BE POSTED DURING THE MONTH OF APRIL, 2008 COVERING INTERESTING THOUGHTS AND EVENTS. KEEP AN EYE OUT.


Leave a Comment









Textile Help