Since the 1960s, three types of mediation have evolved:
1. Facilitative Mediation
In facilitative mediation, the mediator helps the parties to reach a mutually agreeable resolution to their dispute. The mediator asks questions, explores and validates the parties' points of view, searches for interests underlying the positions, and assists the parties to find solutions to their dispute. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process while the parties are in charge of the outcome.
2. Evaluative Mediation
In evaluative mediation, the mediator takes a much more active role in bringing the dispute to some form of resolution. The evaluative mediator will point out the weaknesses in each party's case, and predict what a judge or jury would be likely to do. An evaluative mediator may make formal or informal recommendations to the parties as to the likely outcome of the issues. Evaluative mediators are therefore concerned with the legal rights of the parties rather than their needs or interests.
3. Transformative Mediation
While both facilitative and evaluative mediation aim to help the parties resolve their dispute, transformative mediators are more concerned about helping the parties alter the way in which they relate to each other. While a settlement is one possible outcome of transformative mediation, it is not the only outcome or even the primary outcome. A transformative mediator will therefore listen, ask questions, summarize (without changing meaning), help the parties identify and understand the issues about which there is conflict, and identify and assess options (including non-settlement options). Transformative mediators will not propose settlement terms, draft agreements or make decisions for their clients.
What does the term "mediation"mean?
Mediation is a confidential, voluntary dispute resolution process in which the mediator - an acceptable, impartial, and neutral third party - assists the parties to resolve their dispute and look for workable solutions. The mediator's role is to help the parties to:
define and clarify issues.
explore areas of commonality and mutual understanding as well as areas of difference.
explore possible solutions that might lead to the ultimate settlement of the dispute.
Mediators never render decisions on the issues in dispute.
What types of cases are most suitable for mediation?
Generally, all types of disputes are suitable for mediation provided all parties and their legal representatives are prepared to negotiate in good faith and work towards a mutually acceptable outcome.
What are the costs of mediation compared to trial?
Mediation may take several hours, a day, or in some cases, several days. The length of the mediation depends on the number of parties, the complexity of the issues, and how well prepared the parties and their attorneys are. The length of the mediation is also affected by the parties' desire to resolve the dispute. By and large, the cost of mediation is economical compared to a full-blown trial. For example, just one pre-trial motion by an attorney may cost more than the mediation.
What are the chances of a mediation being successful?
The American Arbitration Association reports that over 85% of all mediations result in a settlement. This is true even where all prior attempts at settlement have failed, where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial.
Why has mediation proven to be so successful?
Aside from the fact that most mediations result in settlement of the dispute, there are a number of intangible factors that explain the success of mediation:
The voluntary, non-coercive nature of mediation helps parties to clarify their own goals, resources, options and preferences. It also enables parties to make fully informed decisions about their situation for themselves.
The investigative aspect of mediation enables parties to consider and better understand the perspective of the other party if they wish to do so. This may result in parties considering settlement options that they may otherwise have rejected.
The presence of a neutral third party and the establishment of ground rules make it possible for parties to alter the way in which they communicate with each other.
In what situations might the use of a mediator be inappropriate?
The following situations are examples of where the use of a mediator might be inappropriate:
The parties are not truly committed to resolving their dispute.
A party wants to achieve a solution at the expense of the other party.
A party wants to secure punitive damages for his/her loss.
One party is not interested in any form of dialogue with the other party.
What types of mediations does HMF specialize in?
HMF specializes in disputes arising out of the workplace. This includes employment disputes, disputes between business partners, and disputes with clients.
What is the difference between mediation and facilitation?
People often use the words facilitation and mediation interchangeably because they are similar in some respects. For instance they both:
Allow a third party to become involved in the process without giving that third party any decision-making authority.
Seek to alter the dynamics between the parties so that opportunities for collaboration become possible.
Create a safe space for difficult issues to be discussed.
Allow a neutral third party to bring a whole series of procedural skills that help the parties navigate through their issues.
In a number of important respects the two disciplines are different:
The objective of mediation is to help the parties deal with a particular conflict that they have been unable to resolve. The objective of facilitation is to provide a group with a structure and process for solving its problems and making decisions so that it can achieve its goals and increase its overall effectiveness. Although dealing with conflict can be a significant part of facilitation, it is not always the primary focus.
Parties typically seek a mediator once they have already reached impasse. Parties may seek a facilitator once they have reached impasse, but may also do so before that point.
Aside from technical skills, what are some of the more important attributes that facilitators and mediators need to possess?
Facilitators and mediators need to be able to:
Remain self-aware, and monitor the impact of their behavior on others.
Focus on identifying relevant issues.
Create a safe and conducive environment so that new ideas can flow freely.
Encourage the full participation of all the members of the group by using communication tools such as questioning, listening, reflecting, and interpreting.
Remain process-oriented, and not outcome-oriented. This includes making sure that all ground rules for engagement that the group has agreed on are enforced.
Give and receive feedback and constructive criticism where appropriate.
Plan, organize and make clear presentations.
"I appreciated the thorough and professional efforts of the mediator."
"The process was fair and thorough. The mediator allowed a fair representation of both sides."
"Mr. Heyman was very patient with both sides and took particular pains to ensure that the Complainant felt satisfied with and well understood his options."
"The mediator was very knowledgeable and helpful with the process. An extremely understanding individual."
"This has been one of the most pleasant mediations sessions in which I have participated. I attribute success to the mediator, Complainant, and Respondent's genuine willingness to settle this case."
"Mr. Heyman was excellent in every way."
"Mr. Heyman is an asset to the Office of Human Rights."
"Mr. Heyman was very professional."
"The mediator was excellent even though the opposing party refused to consider any settlement options."
"I found this mediation process a very positive experience to the credit of the Office of Human Rights. The mediation team performed their duties and responsibilities in an outstanding, professional manner."