When asked to speak on types or styles of mediation, my first thought is always “flexible.” In training to become a mediator, the main types of mediation taught are Facilitative, Evaluative, Narrative, and Transformative. Most schools (and practitioners) have one method they teach and prefer over others, and there are pros and cons for each type. Also, within each type are an infinite number of styles to fit the broad continuum of possible conflict contexts to consider. More expansive than defined mediation types are the potential types of alternative dispute resolution (ADR) methods utilized globally. So, the best thing to do is explore the field of ADR first, then focus on mediation types and styles. In addition, online dispute resolution (ODR) serves to bridge the distance and shrink the costs of engaging through platforms like Brāv, although practitioners prefer to shift from “dispute resolution” to a more accurate moniker “Conflict Management” (Go to www. brav.org for a contemporary look at digital mediation).
ADR, in the contemporary, is any process that creates an alternative to litigation when parties are at odds. Other than a jury verdict, a plea bargain, or a summary judgment when a trial by jury is waived, all processes focused on reaching an agreement between parties are an alternative. The choice of which ADR method depends on the type of dispute or conflict and links to many factors, such as whether a contract stipulates a method or if the parties agree to take a certain path.
Methods that are not mediation would be: a) Settlement conference; b) Arbitration; c) Conciliation; d) private judgment by an agreed-upon expert (often called directive mediation); or e) decision by an elder or other community figures. This list is not exhaustive and depends on factors such as culture and locally recognized norms. Village elder and wise man guidance based on statements by the parties is the historical birthplace of mediation, having evolved into modern conciliation, but it lacks the confidentiality and party self-determination aspects of modern mediation.
Negotiation, dialogue, collaboration, and compromise have the potential to be present in a mediation but are artifacts evolving from the basic types. As an example, commercial mediation, a conflict context, may or may not involve expert facilitation, but almost always involves legal counsel for the parties, lengthy dialogue and negotiation, high levels of evaluative analysis, and should be viewed as a settlement process. This makes commercial mediation more time-consuming and more costly than other types of mediation, but a valuable step to mitigating or preventing litigation.
Facilitative mediation is the original “modern-era” type. The mediator follows a structured process where joint sessions are the rule and all parties can participate in turn. The mediator facilitates by reframing statements for clarity, asking questions to remove ambiguity and normalize the facts, and works from a neutral position to expand upon party interests by assisting in exploring options for resolution. They also work diligently to ensure the major influence guiding the possible outcome is from the parties and not their legal counsel. In the evolving digital mediation platform environment, the facilitative process is viewed as foundational in the way it allows the neutral to oversee the process while building toward solutions efficiently. This type may include aspects of empowerment and lead to some levels of transformation within the parties in traditional and ODR forms. The other types of mediation have evolved out of the facilitative type in response to the practitioner and party needs have shifted toward specificity.
The second type is evaluative mediation, in most jurisdictions, is the domain of attorneys choosing to act as a neutral for the parties. The model emerged from the settlement conference model found in the courts and is often called settlement mediation. In this type, the mediator adds an opinion of the party power position if the conflict moved to litigation. This often leads to shorter processes once the parties understand their relative situation moving forward. The evaluative aspect prevents non-attorneys from participating in most jurisdictions since the act of legal evaluation would be viewed as unauthorized practice of law (UPL).
This model is highly adaptable to ODR platforms. At Brāv, analytics allows parties to explore how changing one point in a negotiation may affect other points and test for optimization without excessive costs, the main benefit of a digital mediation venue. This value-added component enhances the overall process.
Following the first two types onto the scene, transformative mediation has evolved with a focus on empowerment, recognition of value in the other party, and growth through mutual interests. This type is an evolved process that emerged from the early facilitative process, with the intention of letting the parties structure the process and feel empowered by strong self-determination. The mediator becomes a pilgrim in this process, keeping the parties on-task and bearing witness to their collaboration. This process often leads to strong relationships and durable agreements when the parties to reach an agreement.
Narrative mediation is the newest of the four types and allows the mediator to blend the positions of the parties into a synthesized picture of the dispute. This type needs a strong mediator with highly evolved reframing skills able to construct a credible image all parties can explore and adapt. Once the narrative creates a level of consensus, the process can move toward a continuum of possible solutions. On a personal note, this style works very well for family, multi-generational, and elder contexts. Within the framework of reframing, the mediator often influences how the parties view future interactions, imparting a strong sense of internalized conflict management ability to all involved.
Most competent mediators utilize a blend of types based on how they conduct their intake and subsequently view the parties and the conflict itself. The driving force is the needs of the parties, the competency of the mediator, and whether an ongoing relationship beyond the current discord is the stated goal of either party. Also, the pros and cons of each type must be considered.
Those who support transformative or narrative mediation believe facilitative or evaluative limits self-determination. On the other side, facilitative and evaluative practitioners feel transformative and narrative styles take too long and often fail to find resolution in complex scenarios. As noted, facilitative and evaluative types work well on digital platforms, while transformative and narrative types may be better served through traditional venues. Brāv is working diligently to ensure all types will be enhanced to a degree but acknowledge evolution is ongoing. Regardless of these factors, the optimal mediation type should emerge from the intake data and the dispute/conflict context. For example, a conflict linked to financial interests often requires decision trees and cost analysis, requiring some level of evaluation, making the type obvious. The opposite, an existing conflict linked to a multi-generational communication struggle, could find narrative or transformative as an optimal solution vehicle.
When considering the breadth and depth of contemporary mediation, one must understand the field is linked to the legal arena, if only as a distant cousin. The law is a living instrument, focused on maintaining precedent for uniformity of application and fair play within reason. Mediation and other forms of ADR follow that lead, but with additional conditions. Confidentiality, private resolution of differences, and party self-determination make mediation very attractive when compared to the stark reality of litigation with no guarantees and enforced judgments by others. The primary question becomes “Who do you want to decide when faced with critical matters?” Most would lean toward self-determination if they understood the process differences.
By Dr. Buddy Thornton (ABD) (GCU) contributing author (December-2017)
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