By Dr. Gary Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This is the first article in a four-part series on mediation alternatives.
In a previous series, we examined the concept of arbitration and why it is so attractive to American corporations as an alternative to litigation for dispute resolution. In this series, we’ll look at another alternative for dispute resolution: mediation.
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In mediation, a third party called a mediator is hired, and usually the cost is shared by all parties involved. Mediators are often magistrates or attorneys who have also been credentialed to mediate. The mediator guides and facilitates all discussions between the parties.
Mediators should be unbiased about the parties in the dispute and should have no personal interest in the outcome. Their role is not to pass judgment, but to encourage the parties to compromise and reach an accord. Their contributions to the discussions, however, are not binding on the parties in any way.
The key distinction between mediation and arbitration is that with mediation, a final resolution is not guaranteed. Mediators may make a recommendation or evaluation of the dispute in the form of an opinion, but such attestations are never binding on the parties involved.
Often, mediators who do render an evaluation or recommendation will do so in the form of a written document or memorandum. This writing has the legal weight of a contract that must first be agreed to by all parties involved before it imposes any real obligations on the same.
The Distinction between Facilitative and Evaluative Mediation
It is important to address one main dichotomy in the world of mediation strategy: facilitative versus evaluative mediation efforts. This distinction was first proposed by the renowned legal scholar Leonard Riskin. Although agreement between the parties and resolution of the dispute are the overarching goals in both cases, each of the two philosophies approaches the challenge from very different perspectives.
Facilitative Mediation: In facilitative mediation, the mediator’s main focus is on driving negotiation, not evaluating the merits of the different arguments made. These strategies emphasize ground rules for communication; efforts to help each party understand and empathize with the positions of the other; and intercession when necessary to keep the dialogue between the disputants civil and the ambitions realistic. Again, this strategy makes no attempt to determine which side is “right” or more deserving of redress than the other.
Evaluative Mediation: In evaluative mediation, the mediator’s focus is on the merits of the arguments and reaching a conclusion as to that which justice requires. The strengths and weaknesses of each disputant’s arguments are assessed, and an opinion is rendered as to which of the arguments are well-founded and which are not. Although these opinions are still not binding on the parties, the aim is to realistically project for them the strength of their arguments as they would be interpreted by a court. The hope is that the parties will act pragmatically to reach an accord and avoid a suit.
There Are Several Different Types of Mediation from Which to Choose
There are several different types of mediation from which to choose. The following is by no means an exhaustive list, but rather a review of some of the most prevalent in the current paradigm. The appropriate choice will be determined by the nature of the parties’ positions, as well as by their individual ambitions for the mediation process.
Triage Mediation: Triage mediation is often catalyzed by court order. In order to sustain the efficiency of court dockets, sometimes judges will order pre-trial mediation. The goal is efficiency and relief for the strained public justice system. Triage mediation is evaluative in nature and can be highly coercive in pressuring parties to settle in the interest of efficiency.
One of the biggest problems with court-imposed mediation is that the parties involved do not willingly elect the process and thus may be reluctant to participate. Additionally, the quality of the mediators offered by the judicial system is an important factor to its success.
Bargain-Based Mediation: Bargain-based mediation aims at compromise through scrutiny and criticism of the position of each disputant. In this sense, it is also evaluative in nature. The goal is not so much to see justice through to its absolute end, but to secure a reasonably fair outcome for all parties based on the realistic possibilities at hand.
Unlike triage mediation, a technique called “caucusing” is commonly used. The mediators meet independently with one party at a time to try to manipulate their positions without the distraction of the other party being present. These “caucuses” commonly lead to greater levels of humility and honesty.
Also, the disputants are generally much less opposed to concessions when they are not forced to make them in front of those who they perceive to be their opponent(s). As we discussed in our series on arbitration, pride and ego can be powerful obstacles to successful alternative dispute resolution (ADR).
Pure Mediation: Pure mediation, unlike bargain-based, focuses not on a final resolution, but on promoting behaviors and dialogue that will lead to a successful resolution. The emphasis is on understanding each other’s opposing feelings and emotions. The underlying goal is a “win-win” solution where neither party must leave the table feeling defeated.
Caucusing is also very commonly used in pure mediation. Because of this emotional targeting, pure mediation is frequently successful in divorce proceedings and other disputes that have strong emotional underpinnings.
Transformative Mediation: Transformative mediation is also facilitative in nature. It sets aside the goal of agreement in favor of promoting understanding.
Transformative mediation focuses on empowering each party to own the outcome of the negotiations. By encouraging the disputants to recognize the position and motivations of the others involved, and by simultaneously reminding the parties that they each have control over the fairness and success of the outcome, the focus is on relationships and reconciliation. In doing so, agreement and compromise often become byproducts of this process.
In the next part of this series, we’ll look at the stages of the mediation process and the issue of confidentiality in the process.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
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