December 07, 2009
Different Mediation Styles– Find What You’re Looking For
Mediation is a term applied to a wide variety of dispute resolution forms. Mediation can be a process with a sharky-style mediator going back and forth between two rooms full of attorneys with one thing on his or her mind: settlement at all costs; and the label mediation just as accurately applies to a process where an attorney sits in a living room-style setting and asks questions about the two clients’ values and how they both can heal through resolving their conflict.
Here are some pointers on how to find the type of mediation style that will work well for you and your spouse:
1) Ask the mediator if they are evaluative or facilitative. Evaluative mediators generally focus the process on the legal elements of a situation, and will generally try to shepherd clients to a “legally fair” result. In contrast, facilitative mediators generally focus the process on educating clients on the underlying factual situation, including clients’ values and opinions, adding neutral legal information as much or as little as the clients need to make informed consent, and usually do not give their opinion on how clients should resolve their situation.
2) Ask the mediator if they use a positional bargaining or an interest-based bargaining model. We’re all familiar with positional bargaining, as that’s the habit we all have of deciding what we want, and then maneuvering to get there, as in, “I have to keep the house, and nothing is going to be okay with me unless I get the house.” Interest-based bargaining is a bargaining model that most mediators gently teach their clients, as in the mediator asking, “Tell me more about what the house means to you…does it symbolize security, a good investment, a positive piece of the past, tell me more about your thoughts around wanting the house.” Once a client gets the bigger picture of their concerns and interests usually they can be open to a myriad of options that meet their needs. But some clients need a positional bargaining environment to compliment their attorney’s services or their personalities, and other clients want the interest-based bargaining support to develop their best possible outcome.
3) Ask the mediator how long they litigated prior to becoming a mediator, and if they think the law should control the outcome of a situation. Some mediator-attorneys operate like quasi judges. Does that sound good to you? That type of strong, law-controlling approach can be a perfect fit for clients who want that type of structuring and input. That style of mediation is excellent for clients who are represented by an attorney, or have a consulting attorney who is up-front and participatory. But for clients who look to mediation as a way to avoid a purely legal environment, and are trying to choose a values-based, client-based process they may want to search for a mediator who emphasizes those skills when answering this question.
4) Ask the mediator if they require that clients have a consulting attorney or not.Usually, the more legally-oriented a mediator is, the more likely they are to require clients to have a consulting attorney.
No matter what mediation style you choose, the mediation process asks a lot of clients. But prior to starting a mediation process, your time will be well spent if you ponder your and your spouse’s communication patterns, personalities, and current level of conflict with a view to matching your strengths with the right mediation style.