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Published: 29 April 2024
Last Updated: 30 October 2024
Some middlemen seem to be dealmakers and usually represent a specific party. On the contrary, a true mediator is nonpartisan and accountable equally to everyone at the bargaining table. Unlike arbitrators, mediators have no power to enforce an outcome on any parties involved because mediators are process specialists and proficient at moving people by narrowing bargaining in the direction of a problem-solving approach.
Settlement Conference
A settlement conference, or settlement mediation, is the most formal style conducted by attorney-mediators. This style of mediation often involves “shuttle diplomacy” negotiation as the mediator meets with each party privately and goes back and forth with each side by carrying proposals, floating ideas, etc. until the mediator discovers untapped possibilities for mutual gain. During this mediation style, parties are usually legally represented. It is common to see mediators who may not have prior mediation training, yet they actively assist the parties in settling. Settlement mediation is generally used for transactional and commercial disputes by focusing on positions rather than interests. This style does not necessarily result in a quality settlement, but it has a good settlement rate. The primary goal is settlement. As the attorneys tend to speak for the clients, the mediator often separates the parties and their attorneys into separate rooms. Furthermore, the mediator may give an opinion regarding the possible outcome of the case in court.
Facilitative
Facilitative mediation is conducted by trained mediators, often not attorneys, and is less formal. This type of mediation mostly holds joint sessions with all parties present so that the parties can hear each other’s opinions and hold caucuses regularly. The main intention is to let the parties have the individuality of major influence on decisions made, rather than the parties’ attorneys impacting their decisions. Facilitative mediation is considered the traditional type of mediation, whereby the mediator facilitates discussions between the disputing parties and encourages disputants to reach their voluntary solution by discovering their respective interests and goals. Early facilitative mediators were fully focused on transforming society with pro-peace techniques. The mediator will make suggestions for resolution but mediators tend to not impose a decision or views regarding the conflict and do not give their recommendations to the parties, never give their advice or opinions as right or wrong as the outcome of the case, and do not predict what a court would do in the case.
In facilitative mediation, the mediator focuses on and helps the disputing parties’ results. The emphasis is on the process of identifying their needs, wants, goals, and interests that are feasible or work for them; it may be opposite to what others do, their positions, or what the law might say. The mediator’s goals are to settle the dispute, improve the relationships between the parties, and support the parties in resolving the dispute themselves. The mediator is in charge of the process, and the parties are in charge of the outcome. The parties and their attorneys may remain in the same room, but the mediator uses techniques and communication skills to separate the people psychologically from the problem.
The mediator does not provide an opinion of the case outcome in court, but instead, the mediator explores the parties’ feelings and interests to accomplish a mutual understanding important for the parties to preserve relationships, structures a process to assist the parties to reach a mutually agreeable resolution, and sets it to become a foundation of agreement. Facilitative mediation is growing in the era of volunteer dispute resolution centers or organizations, whereby the volunteer mediators may not be required to have substantive expertise concerning the area of the dispute and, most often, the cases without the presence of attorneys. The volunteer mediators came from all backgrounds. In addition to many professional mediators, with and without substantive expertise, a knowledgeable person as a volunteer mediator may seem to practice facilitative mediation in today’s world.
Evaluative or Directive
Directly opposite to facilitative mediation, an evaluative or directive focuses on the parties’ rights, and the mediator provides expert advice by making suggestions and recommendations and expressing his or her opinion about the strengths and weaknesses of each party’s position based on the law and the facts. Instead of focusing on the underlying goals and interests of the parties, evaluative mediators direct the settlement in an open evaluation to the parties about the legal merits of the dispute by expressing opinions. This type of mediator actively gives recommendations, legal opinions, and advice on the possible outcomes in court. Parties are often legally represented. Evaluative mediation is a process modeled on settlement conferences held by judges. This style may undermine parties’ autonomy and be prone to power imbalances.
An evaluative mediator assists the dispute parties in resolving the dispute by reflecting on the weaknesses of their cases and predicting the outcome of a judge or jury. An evaluative mediator may make formal or informal recommendations to the parties that lead to the outcome of the issues. Evaluative mediators evaluate based on legal concepts of fairness, concerned with the legal rights of the parties rather than the needs or interests of the parties. Evaluative mediators often meet with the parties and their attorneys in separate meetings by practicing “shuttle diplomacy” negotiation. They assist the parties and attorneys in evaluating their legal position, the costs, and the benefits of pursuing a legal resolution rather than a settlement in mediation. The evaluative mediator structures the process and directly influences the mediation outcomes.
Evaluative mediation emerged in court-referred mediation or court-mandated mediation. Attorneys usually work with the court to choose the mediator, and they become active participants in the mediation. The mediator may meet the attorneys alone or with a combination of the parties and their attorneys. Due to the connections between evaluative mediation and the courts and their comfort level with settlement conferences, it can be seen that evaluative mediators are mostly attorneys.
Transformative
Transformative mediation is a less formal mediation process. Transformative mediators will meet with any or all parties together to allow parties to give recognition to each other. The values of transformative mediation mirror those of early facilitative mediation in certain ways. Depending on the situation, the mediator may apply aspects of transformative and narrative mediations by making efforts to encourage the parties to transform relationships and, based on "empowerment,” encourage disputants to resolve their conflict by encouraging them to recognize each other’s goals, needs, interests, values, and points of view. It is to transform the parties' relationship by helping them to develop and gain the skills they need for constructive change and the ability to communicate and cooperate with one another more effectively. It is most helpful for parenting disputes and custody, employment disputes, and other kinds of disputes whereby the parties need to maintain a continuing relationship. Usually, a trained mediator is more focused on the empowerment of the parties and assists parties in recognizing the options that are available within the conflict situation and transforming their relationship rather than focusing on the parties reaching an agreement. The methods used by the mediator include identifying sentiments, repeating, reframing, and asking open-ended questions. Even though a settlement may happen, it appears to be a secondary goal for the mediator. The parties will structure both the mediation process and outcome, and the mediator will follow the parties' lead.
The mediator will not actively intervene because the focus is on changing relationships rather than on settlement. The transformative mediation may potentially transform any or all parties or their relationships during the mediation. It is a good option if parties want to improve relationships, but it can be harmful if not done properly.
Transactional
Transactional mediation often uses some features of facilitation and evaluation. Transactional mediation's primary goal is to reach an agreement by using the traditional negotiation style, and the mediator becomes more of a settlement director. This often involves “shuttle diplomacy” negotiations.
When financial trade-offs result in limited movement, the parties will confidentially negotiate a series of hypothetical moves directly with the mediator about their actual expectations in the negotiation. The cases facilitated by the mediators may include personal agreements, angel investments, a joint venture of products or services, a medical partnership, authorized access rights, a host of businesses, and a community. Specialized mediators can also contribute their expertise to deal with structuring for their parties. While parties are generally positive about the prospects for transactional mediation, it may raise some ethical and legal issues, for example, if communications with a mediator are bounded by the same confidentiality protections that apply to court-annexed proceedings. Also, an argument was made that a mediator may be involved in an acquisition or merger and might have to register as a broker and comply with security regulations.