Mediation Approaches Explored: Enhancing Relationships and Resolving Disputes

In our complex world, disputes are part of everyday life, and mediators have been resolving simple disagreements up to multifaceted land disputes on an international scale. As each conflict contains unique circumstances and issues, mediators must use their expertise and mediation techniques to reach a resolution. Therefore, in our quest to identify an ideal mediation model, we quickly acknowledge that there is no set formula for dispute resolution.   Simmons (2016) supports that most mediations do not fit within one approach, but ideally, a hybrid of approaches should be implemented to ensure an optimal outcome.[1] This article will identify mediation approaches and their ideal application.

On the conflict resolution continuum, mediation exists between negotiation and adjudication and a key distinction of being led by an impartial third-party neutral.  Concisely defined by Moore (2014), "Mediation means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute." It is consensual, confidential, and characterized by the parties' autonomy to control the outcome.[2]       

Mediation typologies, methods, or approaches have developed over time.   More recently, Kleefied and Zweible (2016) identified four prominent mediation approaches: facilitative, transformative, evaluative, and narrative.  Each approach differs in its emphasis on problem-solving versus relationship-building. [3]  Facilitative mediation is the most widely used approach and focuses on continuing the relationship between the parties, whereas the evaluative approach focuses on legal rights and positions.  The transformative approach focuses on problem-solving by empowering the parties to make their own decisions and better understand needs or feelings.  The narrative approach focuses on the relationship and creating a new story for each person involved in the conflict.

Facilitative mediation

A term Leonard Riskin (1996) coined, facilitative mediation describes parties reaching a mutual agreement based on the goals, objectives, and needs and a strong desire to have a continuing relationship.[4]    In this approach, the mediator acts as a facilitator between the parties by gathering information, actively listening for positions, and reframing communications for parties to better understand each other.  A common technique used within this approach is integrative negotiating, introduced by Fisher and Ury (1981), which focuses on identifying the parties' interests rather than positions, separating the people from the problem, and creating options or solutions to a problem using objective criteria.[5]  The mediator gives no advice or recommendations.    

Facilitative mediations are primarily held in open sessions with mediators acting in a supportive role or problem-solving mode to "orchestrate a process of shared understanding and creative option generation."[6] This approach is advantageous to parties that value a long-term relationship and seek a mutually beneficial outcome. 

It is best to begin with the facilitative approach when the parties' continuing relationship is paramount.  Facilitative mediation is common when dealing with workplace conflicts as they help co-workers through difficult conversations as they seek a working relationship forward. 

Transformative mediation

This approach has the capability of "changing the quality of conflict interactions"[7] and transforming the parties involved.  Parties are empowered during the mediation to make their own decisions and better understand the other parties' needs or feelings.  In this method, the mediator follows the parties' lead to outline both the mediation process and outcome. 

This approach is advantageous to parties that want to resolve specific issues. Still, more importantly, they can jointly build constructive communication skills, re-capture their connection, and move the relationship forward on a positive path. Parties value and are committed to a long-term, continuing relationship and have a shared goal of achieving a mutually beneficial outcome.

This approach is common in family disputes as they seek a harmonious relationship to move forward. For example, in a case of divorce, the mediator could begin with facilitative conversations to help couples and families through difficult conversations. While the process unfolds, an evaluative approach may be required to work out financial and legal rights alongside each party's advocate.  Ideally, the parties work through the transformative approach to help each party build communication and relationship skills to create a unique, forward-looking, harmonious story.

Evaluative mediation

Evaluative mediation, modelled from business and commercial dispute settlement conferences, focuses on each party's legal rights and positions rather than the parties' unique needs and interests.  An evaluative mediator is more active in gathering information, asking questions, acutely listening to the parties, analyzing, predicting court proceedings, and making outcomes recommendations.  The mediator is often a subject matter expert who utilizes multiple caucuses or private meetings to facilitate distributive negotiations or bargaining known as competitive, positional, or "zero-sum", where only one-party wins and the other loses.[8]  This approach is advantageous to parties with a short-term and competitive goal to maximize their position and is not required to continue the relationship. 

Most commercial disputes would require an evaluative approach.  The evaluative mediator collects information and analysis from a legal perspective and advises the parties on the risks and likely outcomes.  The mediator could also use a facilitative approach to explore joint interests to support the settlement to gain more information. 

Narrative mediation

To address conflicted relationships, Winslade & Monk (2000) introduced the narrative mediation approach, which uses storytelling as both a metaphor and a reframing technique to solve disputes.  As stated, 

"Solving a specific dispute is less important than the parties developing new attitudes towards conflict, which they can continue to apply. Narrative mediation works to break the parties' cycle of conflict by deconstructing the parties' negative "conflict-saturated" stories and having them co-author a new story that is incompatible with their previous conflict cycle."[9]

Comparable to therapeutic professionals, mediators who use this approach must build trust with the parties through many conversations.  These "externalizing conversations" include creating a persona for the conflict, mapping the effects of the problem on the persona, deconstructing the dominant storylines, and developing shared meaning about the conflict and solution.  Mediators must be aware of the difficulties when seeking the objective account of "what happened" and move parties toward a story that incorporates a variety of perspectives.[10]

This approach is advantageous when working with marginalized groups.  This approach strives for the betterment or empowerment of the parties beyond specific issue resolution or settlement.  Semmler and Williams (2000) presented a powerful case example introducing "Shirley", an African American graduate student in her mid-thirties who entered counselling with complaints of depression, isolation, and uncertainty.  As described by Semmler and Williams (2000), "deconstructing dominant cultural paradigms, separating problems from people, freeing our sense of self from negative social prescriptions, and revealing our strength and promise as individuals are processes that can be tremendously liberating for clients of colour in their struggle against racism".[11]  

Conclusion

Is there an ideal model of mediation? In pursuit of a resolution, each conflict is unique and may require a blend of mediation approaches. As shown in the examples for each approach, there is no single ideal model. Advanced and novice mediators must look internally to understand their mediation preferences before selecting their approach for each case and client. 

There is real strength in the power of mediation, as "mediation can thus help disputing parties to "move on with their lives," with the capacity for living those lives restored – including both a sense of their own competence and confidence in their ability to connect to others."[12] As mediators determine how to use their knowledge of the different types of mediation and negotiation styles and leverage their experiences, they are well-positioned to help their clients reach rewarding settlements and long-lasting resolutions. 

[1] Simmons, Martha E. (2016) Mediation: a comprehensive guide to effective client advocacy.  Emond Montgomery Publications Ltd.: Toronto.

[2] Moore, Christopher. The Mediation Process, 3rd Ed. (San Francisco: Jossey-Bass), 2003. In Macfarlane, J., Manwaring, J., Zweibel, E., Daimsis, A., Kleefeld, J., & Pavlović, M. (2016). Dispute resolution: readings and case studies (Fourth edition.). Emond Montgomery Publications.

[3] Kleefield, E. & Zweible, J. (2016). Mediation (Chapter 3). In Macfarlane, J., Manwaring, J., Zweibel, E., Daimsis, A., Kleefeld, J., & Pavlović, M. (2016). Dispute resolution: readings and case studies (Fourth edition.). Emond Montgomery Publications.

[4] Waldman, Ellen A. (1998) The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic Jurisprudence, Marquette Law Review 82:4

[5] Fisher, Roger, & Ury, William. (1981) Getting to Yes. (Boston: Houghton Mifflin).

[6] Simmons, Martha E. (2016) Mediation: a comprehensive guide to effective client advocacy.  Emond Montgomery Publications Ltd.: Toronto.

[7] Macfarlane, J., Manwaring, J., Zweibel, E., Daimsis, A., Kleefeld, J., & Pavlović, M. (2016). Dispute resolution: readings and case studies (Fourth edition.). Emond Montgomery Publications.

[8] Simmons, Martha E. (2016) Mediation: a comprehensive guide to effective client advocacy.  Emond Montgomery Publications Ltd.: Toronto.

[9] Macfarlane, J., Manwaring, J., Zweibel, E., Daimsis, A., Kleefeld, J., & Pavlović, M. (2016). Dispute resolution: readings and case studies (Fourth edition.). Emond Montgomery Publications.

[10] Ibid.

[11] Semmler, P., Williams, C. (2000). Narrative Therapy: A Storied Context for Multicultural Counseling. Journal of Multicultural Counseling and Development, Jan 2000: 28. 

[12] Macfarlane, J., Manwaring, J., Zweibel, E., Daimsis, A., Kleefeld, J., & Pavlović, M. (2016). Dispute resolution: readings and case studies (Fourth edition.). Emond Montgomery Publications.