DIFFERENT STYLES OF MEDIATION
Mediation is a structured procedure in which the parties discuss their disputes with the objective of resolving their conflicts with the assistance of a trained impartial third person(s) known as the mediator. The parties try to reach a settlement through effective communication and negotiation. Cases suitable for mediation are disputes in commercial transactions, personal injury, construction, workers compensation, labor, employment, or any other matter which does not involve complex procedural or evidentiary issues.
On the out-front mediation seems to be a simple and straight forward process, but in reality, there are various methods and approaches that are followed by a mediator in order to assist the parties to reach on common ground. There are various styles of mediation, some of the important ones are discussed as follows:
- Facilitative Mediation- This is the traditional and most widely used method of mediation. In this approach, the mediator attempts to facilitate negotiation between the parties. Rather than imposing his own opinions and decisions, the mediator encourages the parties to negotiate and come up with their own terms of the settlement. This approach is based on the belief that the disputing party can settle their conflicts if proper information is disclosed to them. This process of mediation is very open-ended, time-consuming, and costly.
- Evaluative Mediation- This procedure is in contradiction with facilitative mediation. In this method, the mediator puts forth his views and opinions in respect of the dispute. The mediator assesses the strengths and weaknesses of the parties’ case and predicts the likely outcome of the dispute. The primary focus is not on the interests of the parties, rather it is more on their legal right. Evaluative mediators are often attorneys having legal expertise in the subject- a matter of the dispute.
- Transformative Mediation- It is an emerging form of mediation that focuses more on the ‘people’ as opposed to the ‘problem’. In this approach, the mediator focuses on resolving conflicts in the interests of the parties and encouraging the parties to recognize each other’s interests and needs. Its main aim is to transform the relationship between the parties. The mediator is required to have the requisite skill and training for following this particular mechanism.
- Med-Arb – It is a mediation-arbitration hybrid. In this method, the parties enter into an agreement stating the terms of the procedure. Initially, the conflicting parties make an attempt to resolve their disputes through mediation if the disputes remain unresolved then the parties switch- over to arbitration. The agreement also specifies that the outcome of the procedure shall be binding on the parties involved. In its pure form, the same person acts as the mediator as well as the arbitrator in both the phases. It is considered as a flexible mechanism for resolving disputes.
These are the most widely used mechanisms for resolving disputes through mediation. Each method is not suitable for all kinds of disputes. It is very essential that the mediator and the parties involved identify the best-suited approach in order to resolve the disputes more effectively and efficiently.