Mediation

A Practical Guide

Alan Stitt

• Publisher: Routledge-Cavendish
• Year: 2016
• ISBN:
  9781135334123
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This unique and practical resource shows what mediation is, the rationale behind it and how it differs from litigation. It explains every aspect of the mediation process and provides practical tips and useful case studies, clearly setting out all the do's and don'ts of mediation.

CHAPTER 1
MEDIATOR STYLES

1.1 WHAT IS MEDIATION?

Mediation is, simply, facilitated negotiation. A mediator attempts to help people negotiate more effectively and efficiently than they could on their own. The mediator helps the disputants¹ to find solutions to their conflict that make more sense to them than continuing with their dispute. The mediator helps them search for common ground and find creative yet realistic ways to resolve their issues.

Rule number one for the mediator is, above all, do no harm.² A mediator should make sure that disputants do not leave the mediation in worse shape than when they arrived.

Rule number two is that, other than rule number one, there are no absolute rules. There are many ways for a mediator to help people negotiate and any method may be appropriate, depending on the circumstances. Mediators will try different techniques, be creative and use innovative approaches to try to help disputants find solutions to their problems.

1.2 A FAIR RESULT

Do we want mediators to move disputants toward a ‘fair’ solution? The obvious answer would appear to be yes.

Suppose Company A has breached a contract by failing to supply goods on time as promised, and as a result Company B has suffered £1 million in damages. Company A has come up with all kinds of excuses, arguing that Company B caused delays and did not want to accommodate by accepting orders after 5:00 pm. Suppose the mediator thinks Company A’s excuses are weak, and would probably not be accepted by a judge. Shouldn’t the mediator help lead the disputants to a solution whereby Company A appropriately compensates Company B? That seems fair and it seems obvious that a good mediator would push the disputants to reach a fair solution. But is that what a good mediator would do?

What is a fair solution? Who should decide what is fair? Should Company A have to pay Company B £1 million? How does a mediator know for sure what a court would do? Would a court even necessarily deliver a fair result? What about the risk that the mediator is wrong about what a court would do? After all, no one can predict with certainty what a court will do and a court may accept one of Company A’s excuses. Should a mediator’s opinion of what is fair be determinative? Not always.

For many disputes, the mediator should not focus on what he or she believes is fair; instead, the mediator should help the disputants to see whether they can come up with a solution that they both want to accept, regardless of the mediator’s subjective sense of fairness. The mediator’s concept of what is fair may not be the same as the disputants’ and it is the disputants who will have to live with the result, not the mediator. Disputants may want a mediator who will focus on their underlying interests and facilitate the discussion in a way that helps them come to their own conclusions and solutions. This type of mediator is known as ‘facilitative’.

On the other hand, depending on the situation, the nature of the dispute and the identity of the mediator, the disputants may want someone who directs them toward a particular result. Sometimes disputants want mediators who will evaluate the arguments raised by them and try to persuade them about what is fair. This type of mediator is known as ‘evaluative’.

Evaluative mediators are sometimes referred to as ‘rights-based’ because it is assumed that these mediators focus on the disputants’ legal rights. The truth is that the term ‘rights-based’ is probably deceptive, as facilitative mediators also usually spend time focusing on legal rights and the consequences of not reaching agreement.

Facilitative mediators are sometimes referred to as ‘interest-based’ because these mediators focus on the disputants’ underlying interests or goals. Once again, the term may be deceptive, as many evaluative mediators also try to focus on disputants’ interests and needs when evaluating the dispute and determining what is fair.

There are some important distinctions in the way that facilitative and evaluative mediators manage the mediation process.

1.3 EVALUATION MEDIATION

Evaluative mediators rely on their expertise and experience to assess situations and reach conclusions about the relative merits of the arguments that are being presented to them. Evaluative mediators are often retired judges or politicians, senior lawyers or accountants, or people who are respected and have a lot of experience in a particular field such as computers, engineering, accounting or sports.

In an evaluative mediation, the role of the disputants (and their lawyers) is to present persuasive arguments that will convince the mediator that the disputant has a strong case and will win if the matter goes to trial. Presentations to the mediator are in the form of legal arguments, usually made by a lawyer. The process is similar to a court process, without the formality, and that is why some refer to evaluative mediation as non-binding arbitration. Evaluative mediation is non-binding in the sense that the disputants need not accept the mediator’s evaluation of the merits of the case. Disputants can conclude, as they often do, that the mediator has misconstrued the facts, misapplied the law or just missed the point, and that the disputants will be better off going to court and taking their chances with a judge.

If the disputants do not agree with the evaluative mediator’s assessment, the mediator may attempt to persuade them of the accuracy of the assessment. Some evaluative mediators try to bully the disputants into agreeing. Evaluative mediation is therefore sometimes referred to as ‘muscle mediation’.

Evaluative mediation is frowned upon by some mediators who believe that it is not ‘true’ mediation, as the mediator does not facilitate, but rather judges. They argue that it should not be considered mediation; it should be called non-binding judging or non-binding arbitration. Others believe, however, that evaluative mediation serves an important role for those in conflict, as it provides disputants with an opportunity to receive an unbiased evaluation of their case without the expense of a trial. It also moves the mediation from a somewhat subjective process to a more objective one, focusing on the mediator’s assessment and standard of fairness.

People sometimes assume that if they have a strong case, and if they are in the right, then evaluative mediation will better serve them than facilitative mediation. They believe that the mediator will undoubtedly agree with them, that the other side will be told they have a weak case, and that the other side will accept the mediator’s assessment. Unfortunately, evaluative mediation is no more predictable than a trial. The evaluative mediator may not agree with the side that believes it has a strong case. Disputants in evaluative mediation take the risk that the mediator will not agree with their assessment of the strength of their case and, as a result, the other side may be less likely to reach an amicable resolution to the conflict than it was before the mediation.

Even if the evaluative mediator agrees that one side’s case is strong, the other disputant may also believe that he or she has a strong case and may not be open to being persuaded by the mediator’s views. The other side may believe that he or she is better off going to trial, hoping to find a judge who is more sympathetic to his or her argument than the mediator was. That does not mean, however, that evaluative mediation is never appropriate. For example, a lawyer may prefer an evaluative approach to a facilitative one if the lawyer believes that his or her own client is being unrealistic and perhaps obstreperous. Evaluative mediation may produce an opinion from the mediator that supports the lawyer’s assessment, in which case the client may be persuaded to make concessions that he or she would not otherwise be prepared to make. Alternatively, the mediator may agree with the client’s assessment and the lawyer may need to re-evaluate his or her assessment of the case.

Another situation in which evaluative mediation may be appropriate is a case where the dispute is a purely legal one. The disputants may decide that the opinion of a retired judge is as valid as the opinion of a sitting judge. They may decide to avoid the cost of litigation or arbitration and have an evaluative mediator provide an opinion based on brief presentations made at mediation, so that they will be better able to assess how a court would decide on the legal issue before it.

Evaluative mediation may also be appropriate where disputants have a technical dispute and need the opinion of a technical person in order to resolve the dispute. They may find someone to mediate whose opinion they both respect and may find persuasive.

1.4 FACILITATIVE MEDIATION

In a facilitative mediation, the mediator facilitates the discussion and the negotiation in an attempt to help the disputants find a solution that is acceptable to both (or all) of them. The mediator helps the disputants explore the options to determine whether there is an option that appeals to them. The mediator facilitates the discussion even when the mediator believes that the option being discussed is unfair.

The disputants and lawyers all play an active role in the process, though they try to persuade each other, not the mediator. The mediator’s perception of what is right and what is fair will not play a major role in the process.

Facilitative mediators are experts in the process of negotiation and not necessarily the substance of what is being discussed (though they usually have some familiarity with it). The value that they bring to the mediation is negotiation expertise, helping disputants overcome obstacles in negotiation that they may not be able to overcome themselves.

Just because a mediation is facilitative does not mean that the mediator will not discuss with the disputants the strengths and weaknesses of their cases, attempt to determine the likelihood that each side will prevail at trial, and even suggest which arguments the mediator finds persuasive. What differentiates facilitative from evaluative mediation is that a facilitative mediator tries to enable the disputants to reach consensus on what they think is a fair outcome, while an evaluative mediator tries to lead the disputants to his or her own assessment of what is fair.

Which types of disputes are appropriate for facilitative mediation? It is difficult to predict when facilitative mediation will and will not lead to a settlement. Senior lawyers often say that the dispute in which they are acting is ‘not ripe for mediation’ or that the disputants are ‘too intransigent’ for the mediation to result in resolution. Far more often than not, these cases settle. The right question may not be, therefore, ‘When is facilitative mediation appropriate?’, but rather, ‘Is facilitative mediation ever inappropriate?’.

Facilitative mediation can almost always be an appropriate way to proceed as it provides the disputants with an opportunity to talk, and possibly to settle their dispute. That being said, there are situations in which facilitative mediation is particularly appropriate.

Some disputants believe that they need to posture in order to cause the other side to make concessions. After each side takes a position on the issues, each disputant finds that the other does not agree with that position. Negotiations then take the form of the disputants attempting to persuade each other of the strength of their positions.

A facilitative mediator can step into the middle of the negotiation and establish a process that changes the focus of the discussion away from the positions and the problems, toward possible solutions. The mediator is neutral and espouses no bias toward the disputants. Consequently, he or she can assist the disputants to communicate through the mediator in a way that they cannot do by themselves. Therefore, when disputants have taken entrenched positions, facilitative mediation may be particularly appropriate.

The disputants may have confidential information that they do not want to disclose to the other side. The information may, however, if known, provide an important clue to a possible settlement. In a facilitative mediation, the disputants can confide in the mediator and ask that he or she keep the information confidential. Armed with such knowledge, the mediator may be able to structure the discussion so that settlement options that the mediator thinks may be workable are explored, while not disclosing anything confidential. Facilitative mediation may be particularly appropriate, therefore, for cases in which disputants have confidential information.

People have needs and interests that they try to meet by advocating positions. A primary role of a facilitative mediator is to uncover these underlying interests and try to help the disputants find a solution through which their interests are met. Facilitative mediation may therefore be particularly appropriate for cases in which there are opportunities to come up with creative solutions that are not necessarily tied to the disputants’ positions.

1.5 FACILITATIVE VERSUS EVALUATIVE MEDIATION

People tend to compartmentalise and give labels. At the end of the day, though, it doesn’t really matter what label is placed on the mediation; what matters is that the mediator selected has the skill to maximise the disputants’ opportunity to negotiate a resolution to their dispute. What also matters is that the disputants (or their lawyers) ask questions to find out the mediator’s style before the mediator is selected so that there are no surprises at the mediation.

Throughout most of this book, I will focus on the mediator who uses a facilitative approach, helping disputants find a solution that they (not the mediator) believe is fair. This does not mean that the mediator does not discuss with the disputants the strengths and weaknesses of their arguments. In the right circumstances, the mediator may even play an evaluative role, suggesting what he or she believes is fair, to help disputants overcome an obstacle.

In an attempt to structure mediations that make sense for people who have ongoing relationships, some organisations design dispute resolution systems that help them find the most appropriate processes to resolve conflict. The attempt to set up appropriate processes has resulted in the recent growth of Alternative Dispute Resolution Systems Design.³

1.6 TRANSFORMATIVE MEDIATION

A third approach to mediation, called transformative, has recently been more clearly defined in mediation theory. It is closer to a facilitative than an evaluative approach. A transformative mediator is concerned with facilitating so that the disputants learn more about themselves, and learn a process that will help them resolve future conflict. In a transformative mediation, the process of trying to reach a result is as important as the result itself, and the dispute is the vehicle by which the disputants enter the process. A significant amount of the mediation focuses on the relationship between the disputants. Caucuses (or private meetings) are rare and the mediator spends a significant amount of time facilitating communication between or among disputants. Transformative mediations can take significantly longer than evaluative or facilitative mediations.

Transformative mediations are therefore most appropriate in situations where the disputants anticipate that they will have a number of disputes with each other in the future and need to learn a process that will help them resolve the disputes as they arise.

Tips for Lawyers

• Find out before a mediation what approach your mediator uses in mediation. Is the mediator evaluative, facilitative or transformative?
• If your clients feel strongly about the principle of their case and believe that a judge would side with them, and if you believe that your clients may not be realistic about their chances of success at trial, you may want to find an evaluative mediator. You may need the authority of a senior person with credibility who can give your clients an objective and realistic assessment of the case and will work to persuade you and your clients.
• If there is a dispute about a point of law or a technical issue and both sides agree that a determination of the legal issue will result in a fair resolution, it may make sense for an evaluative mediator to hear the issue and give an opinion. You will want to choose a mediator with the experience and the substantive expertise to give an impartial opinion that the disputants will seriously consider.
• The evaluative mediator will not necessarily agree with your assessment of the case, even if you believe you have a strong argument. Mediators are just as likely to surprise as judges are, and mediators have less information on which to base an opinion. Select an evaluative mediator only if you are prepared to accept the risk that the mediator may have an opinion that does not favour you.
• For most cases, you will want to select a mediator who is skilled at facilitating communication, bringing out the issues and controlling the process. You will want a mediator who can help you search for the best solution for you, even if that is a creative one and not based on what a court might (or even could) do. This does not mean that you should be afraid to ask the mediator to discuss with you the strengths and weaknesses of your arguments, nor should you be afraid to ask the mediator to give his or her opinion.
• If you are dealing with a dispute in which you anticipate that the disputants will have a number of ongoing disputes to deal with (such as an employment situation), you may consider transformative mediators who can help your clients not only solve their problem, but also find a way to deal civilly with each other in the future.
• If you are assisting an organisation to resolve internal disputes among staff, consider whether it would be valuable for the organisation to retain a consultant with the appropriate expertise to help in the design of an ADR system.

Tips for Mediators

• You must choose your own style of mediation. This does not mean you need a label for your approach, such as evaluative, facilitative or transformative. You should choose to be an effective mediator, and that may mean being able to facilitate discussion and, in some cases, give assessments of arguments, so long as you and all disputants clearly understand your role and the process.

____________________

1 I have used the term ‘disputants’ throughout the book to refer to the parties involved in the conflict.

2 I first heard this rule from my friend, Brian H Wheatley of ADR Chambers.

3 For a complete discussion of how organisations can set up systems to deal with conflict, see Stitt, AJ, Alternative Dispute Resolution...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword by Lord Goff of Chieveley
• Foreword by Sir Brian Neill
• Acknowledgments
• Introduction
• Chapter 1 Mediator Styles
• Chapter 2 Why Mediate?
• Chapter 3 Mediation: Facilitated Negotiation
• Chapter 4 Before the Mediation
• Chapter 5 Setting the Table
• Chapter 6 Storytelling
• Chapter 7 Determining Interests
• Chapter 8 Issues
• Chapter 9 Brainstorming Options
• Chapter 10 Selecting the Durable Option
• Chapter 11 Overcoming Obstacles
• Chapter 12 Power Imbalances
• Chapter 13 Positional Bargaining
• Chapter 14 Closure
• Chapter 15 Conclusion
• Appendix A Sample Agreement to Mediate and Terms of Mediation
• Appendix B Selected Bibliography