Discuss the various kinds of ADR

Mediation:

Mediation is an informal and confidential way for people to resolve disputes with the help of a neutral mediator who is trained to help people discuss their differences. The mediator does not decide who is right or wrong or issue a decision. Instead, the mediator helps the parties work out their own solutions to problems.[1]

Mediation is a completely voluntary and confidential form of alternative dispute resolution. It involves an independent, impartial person helping two or more individuals or groups reach a solution that’s acceptable to everyone. The mediator can talk to both sides separately or together. Mediators do not make judgments or determine outcomes – they ask questions that help to uncover underlying problems, assist the parties to understand the issues and help them to clarify the options for resolving their difference or dispute.[2]

The overriding aim of workplace mediation is to restore and maintain the employment relationship wherever possible. This means the focus is on working together to go forward, not determining who was right or wrong in the past. [3]

Many kinds of dispute can be mediated if those involved want to find a way forward. It can be used at any stage in a dispute but is most effective before positions become entrenched. You might want to think about writing a mediation stage into your individual grievance procedure.

 Facilitative Mediation:
In the 1960’s and 1970’s, there was only one type of mediation being taught and practiced, which is now being called “Facilitative Mediation”. In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions; validates and normalizes parties’ points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process, while the parties are in charge of the outcome.[4]

Facilitative mediators want to ensure that parties come to agreements based on information and understanding. They predominantly hold joint sessions with all parties present so that the parties can hear each other’s points of view, but hold caucuses regularly. They want the parties to have the major influence on decisions made, rather than the parties’ attorneys.[5]

Facilitative mediation grew up in the era of volunteer dispute resolution centers, in which the volunteer mediators were not required to have substantive expertise concerning the area of the dispute, and in which most often there were no attorneys present. The volunteer mediators came from all backgrounds. These things are still true today, but in addition many professional mediators, with and without substantive expertise, also practice facilitative mediation.

 Evaluative Mediation:
Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge or jury would be likely to do. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness. Evaluative mediators meet most often in separate meetings with the parties and their attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation. The evaluative mediator structures the process, and directly influences the outcome of mediation.[6]

Evaluative mediation emerged in court-mandated or court-referred mediation. Attorneys normally work with the court to choose the mediator, and are active participants in the mediation. The parties are most often present in the mediation, but the mediator may meet with the attorneys alone as well as with the parties and their attorneys. There is an assumption in evaluative mediation that the mediator has substantive expertise or legal expertise in the substantive area of the dispute. Because of the connection between evaluative mediation and the courts, and because of their comfort level with settlement conferences, most evaluative mediators are attorneys.[7]

Transformative Mediation:
Transformative mediation is the newest concept of the three, named by Folger and Bush in their book THE PROMISE OF MEDIATION in 1994. Transformative mediation is based on the values of “empowerment” of each of the parties as much as possible, and “recognition” by each of the parties of the other parties’ needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other “recognition”.[8]

In some ways, the values of transformative mediation mirror those of early facilitative mediation, in its interest in empowering parties and transformation. Early facilitative mediators fully expected to transform society with these pro-peace techniques. And they did. Modern transformative mediators want to continue that process by allowing and supporting the parties in mediation to determine the direction of their own process. In transformative mediation, the parties structure both the process and the outcome of mediation, and the mediator follows their lead.[9]

The Pros and Cons of Mediation:

Mediation is a popular form of alternative dispute resolution. In many situations it provides parties with a good opportunity to resolve their differences without going to court. However, there are drawbacks to the mediation process. Therefore, before you agree to engage in mediation it is important to think about whether it is the best way for you to decide your current dispute.[10]

Pros:

The benefits of mediation include:

Price: Mediations cost less than litigating a dispute in court. This is important to many people who are looking to solve a dispute.

Time: Many state and federal courts are backlogged and cannot hear cases as quickly as litigants would like. Mediations, on the other hand, can be scheduled at the convenience of the parties and the mediator. Thus, in certain situations such as divorce or employment disputes, many parties favor mediation over litigation.[11]

Control: if your case goes to court or to arbitration then you are bound by the findings of the judge or arbitrator. However, in order for a mediation agreement to be enforceable you have to sign it and approve it. Without your consent, the agreement has no effect.

You Reserve the Right to Litigate: If you do not like the outcome of the mediation and you do not reach a mediation agreement then you can proceed to court.

Cons:

The drawbacks of mediation include:

Waste Time & Money: Mediations are often marketed as being both economically and time efficient. However, that marketing assumes that both parties are honestly willing to mediate the dispute. If one party (or both parties) do not enter the mediation with the intention to make concessions and reach a compromise then the mediation is likely to fail. While mediations are less expensive and take less time than court cases, they still cost money and can last anywhere from a few hours to a few days. The cost of the mediation, and obviously the time it took, are not refundable and the parties to a failed mediation typically need to incur the costs of litigation after the failed mediation is over.[12]

You Agree to a Bad Agreement because of a Bad Mediator: Mediators are trained professionals. However, as with all professionals, their abilities and their personal biases differ. You may end up with a mediator who is new to the business and who helps draft a mediation agreement that is incomplete.[13] Or, you may end up with a mediator who has been through a dispute similar to yours and has a definite bias in favor of one party. The best way to find a good mediator is to rely on your attorney or your friends for personal recommendations and to ask any potential mediator specific questions such as how long that person has been a mediator, how many disputes he or she has mediated and how many have ended in a mediation agreement that is signed by both parties. While a mediator cannot share specifics of any case with you, he or she can give you general information that does not identify the parties in any way and should be willing to answer your questions.

Information Will Not Be Made Public: While this is likely a benefit to mediation in a family law case, there may be other situations where one of the parties wants the information to be public as it would be in a court case. For example, an employee who was treated unfairly might want that information to come out in court and be accessible to the media in the hopes that it will help dissuade the company from acting that way again in the future.[14]

Mediation is very useful for resolving many different types of issues.  However, before you agree to mediation you must carefully weigh the pros and cons of this dispute resolution method to determine if it is likely to be successful for you.[15]

 Strong Feeling:
Mediators tend to feel strongly about these styles of mediation. Most mediation training still teaches the facilitative approach, although some attorney-mediators train in the evaluative model, and Folger and Bush have a complement of trainers teaching the transformative approach. Many mediation standards (from national and state mediation organizations, and state legislative and judicial mediation programs) are silent on this issue; others prohibit evaluation, and a few require it. For example, the Mediation Council of Illinois Standard IV (C) Best Interests of Children states: “While the mediator has a duty to be impartial, the mediator also has a responsibility to promote the best interests of the children and other persons who are unable to give voluntary, informed consent…….If the mediator believes that any proposed agreement does not protect the best interests of the children, the mediator has a duty to inform the couple of his or her belief and its basis.”[16]

[17]Another example of these strong feelings is that in 1997, Florida’s professional standards for mediators were reviewed, and the committee got stuck on the issue of evaluation in mediation. The current rule says “a mediator should not offer information that a mediator is not qualified to provide” (Rule 10.090(a)) and “a mediator should not offer an opinion as to how the court in which the case has been filed will resolve the dispute” (Rule 10.090(d)). The committee came out with two options for a new standard on this issue: Option One would prohibit giving opinions except to point out possible outcomes of the case; Option Two states that the mediator could provide information and advice the mediator is qualified to provide, as long as the mediator does not violate mediator impartiality or the self-determination of the parties. After receiving comments on these two options, both were withdrawn and the committee is trying again. The comments were many and strong. Early in 2000, the new rule was written to reflect Option Two.[18]

In a new Michigan Court Rule effective August 1,2000, which authorizes judges to order cases to mediation, the Supreme Court of Michigan differentiated facilitative processes from evaluative processes. The rule states that courts may order parties to facilitative processes, but not to evaluative processes.

 

 Concerns:
There seem to be more concerns about evaluative and transformative mediation than facilitative mediation. Facilitative mediation seems acceptable to almost everyone, although some find it less useful or more time consuming. However, much criticism has been leveled against evaluative mediation as being coercive, top-down, heavy-handed and not impartial. Transformative mediation is criticized for being too idealistic, not focused enough, and not useful for business or court matters.[19] Evaluative and transformative mediators, of course, would challenge these characterizations. Sam Imperati, for example, sees evaluative mediation as ranging from soft to hard: from raising options, to playing devil’s advocate, to raising legal issues or defenses, to offering opinions or advice on outcomes. He therefore believes that it is not appropriate to assume that evaluative mediation is necessarily heavy-handed. Folger and Bush, on the other side of the discussion, see transformative mediation as ultimately flexible and suited to all types of disputes.[20]

Another concern is that many attorneys and clients do not know what they may get when they end up in a mediator’s office. Some people feel that mediators ought to disclose prior to clients appearing in their offices, or at least prior to their committing to mediation, which style or styles they use. Other mediators want the flexibility to decide which approach to use once they understand the needs of the particular case.[21]

Styles vs. Continuum:
[22]These styles are more a continuum than distinct differences, from least interventionist to most interventionist. The Northwest Chapter SPIDR Survey and other less formal surveys have noted that most mediators use some facilitative and some evaluative techniques, based on individual skills and predilections and the needs of a particular case. Folger and Bush see more distinct differences in styles, particularly the difference of “top-down” vs. “bottom-up” mediation. That is, they believe that evaluative and facilitative mediation may take legal information too seriously, and that resolutions coming from the parties are much more deep, lasting, and valuable. However, in informal discussions, many practitioners who utilize the transformative model state that they mix facilitative and transformative techniques rather than using one or the other exclusively.[23] It would seem that in general mediators are on a continuum from transformative to facilitative to evaluative mediation, but are not squarely within one camp or another.[24]

 

 Conclusions:
There is room in mediation practice for many styles, including facilitative, evaluative and transformative mediation. Each has its usefulness and its place in the pantheon of dispute resolution processes. Imperati believes that most mediators use a combination of these styles, depending on the case and the parties in mediation, as well as their own main approach to mediation. Some sophisticated mediators advise clients and attorneys about the style they think would be most effective for their case. Some parties and attorneys are sophisticated enough to know the difference between types of mediation and to ask mediators for a specific type in a specific case. It appears that it would be helpful for mediators at the very least, to articulate to parties and attorneys the style(s) they generally use, and the assumptions and values these styles are based on. This will allow clients to be better and more satisfied consumers, and the field of mediation to be clearer on what it is offering. It can only enhance the credibility and usefulness of mediation.

Bibliography

http://www.eeoc.gov/employees/mediation.cfm

http://www.acas.org.uk/index.aspx?articleid=1680

http://www.mediate.com/articles/what.cfm

http://zenazumetamediation.com/resources/nafcm.php

http://en.wikipedia.org/wiki/Mediation

http://www.mediate.com/articles/zumeta.cfm

http://metamora.co/Facilitative_Mediation.html

http://www.stevehindmarsh.co.uk/models-of-mediation/

http://www.campusactivism.org/server-new/uploads/adr_continuum_process.pdf

http://en.wikipedia.org/wiki/Transcendental_Meditation

http://www.cehd.umn.edu/ssw/rjp/Resources/RJ_Dialogue_Resources/Training_Resources/VOM_Continuum.pdf

Leonard L. Riskin, Mediator Orientations, Strategies, and Techniques, ALTERNATIVES TO THE HIGH COST OF LITIGATION 111 (1994).

Samuel J. Imperati, Mediator Practice Models: The Intersection of Ethics and Stylistic Practices in Mediation, 706 WILLAMETTE LAW REVIEW 33:3, Summer 1997.

Robert A. Baruch Bush and Joseph P. Folger, THE PROMISE OF MEDIATION, Jossey-Bass, 1994.

William L. Ury, Jeanne M. Brett and Stephen B. Goldberg, GETTING DISPUTES RESOLVED, Jossey-Bass, 1988.

Association of Family and Conciliation Courts/Academy of Family Mediators Standards of Practice.

Joint Committee Standards of Practice (American Arbitration Association, SPIDR and ABA).

Mediation Council of Illinois Standards of Practice.

State of Florida Standards of Practice for Mediators.