Is There More Than One Form Of Mediation And Should I Care?

From a high-level perspective, it may appear that a mediation is a singular process that unfolds in a predictable fashion. However, that is far from the truth. Setting aside for now the issue of logistics (in person, Zoom, joint session, separation of the participants, etc.) a successful mediator’s role may include multiple forms of mediation.  The foundation of these approaches relies upon two fundamental types of mediation. 

First, let’s look at what is called “facilitative” mediation. Broadly speaking, this type of mediation involves the mediator "facilitating" an advancement of communication between parties. More specifically, they are encouraged to fully express the nature of their concerns, address any underlying "hidden" issues, as well as propose their own settlement terms. This process is most often conducted with all parties present together and visible to each other. The mediator will ask questions that elicit the factors cited above. In addition, a good mediator will seek to ensure that each side “understands even if they might not agree” with the opposing side’s position.  Notably, the mediator does not offer opinions as to how a judge or jury would likely view the matter.   The ultimate objective of facilitative mediation is to allow the parties to formulate their own solution to the dispute. 

The second form of addressed herein is called “evaluative” mediation.  This involves extensive evaluation of the dispute by the mediator.  Commonly, the mediator will offer opinions on matters such as application of the law, factual issues, and the potential outcome at trial.  Likewise, the mediator may, provide constructive criticism of a party’s settlement analysis and point out perceived strengths and weaknesses of their case.  Unlike in facilitative mediation, the mediator will likely be deeply involved in guiding the parties to a settlement.  This may possibly include, if the parties are amenable, the mediator suggesting proposed settlement terms.

The bottom line is that you should care.  Some mediators are solely wed to one form or another and this results in a lesser chance of success.  My approach often involves a hybrid of these two approaches.  The form may vary throughout the session depending on the nature of the dispute, the personalities of the parties (and possibly their lawyers) and the direction of the settlement talks.