What Type Of Mediation Would Work Best For Your Negotiation?

There are different ways to mediate – which is best for you?
There are different ways to mediate – which is best for you? Image Credit: Summer Legal Fellowship Program

I think that most mediators view mediation as a type of failure. I mean, we were unable to negotiate a deal with the other side and now it’s come this – we have to bring in a mediator. However, perhaps a better way to view mediation is simply as being yet another step in the negotiation process. If we can view this way, then perhaps we can understand that not all mediations are the same. In fact, mediation comes in a number of different flavors. What this means for us as negotiators is that we need to be aware of what types of mediation are available and know which one to choose in a given situation.

What Is Mediation?

When negotiators have gotten themselves into in a serious conflict during a negotiator want to avoid a court battle, there are types of mediation can be an effective alternative to going to court. If both parties select to use mediation, then a trained mediator tries to help the parties find common ground using principles of collaborative, mutual-gains negotiation. You may tend to think mediation processes are all alike, but in fact, mediators follow different approaches depending on the type of conflict they are dealing with. Before you choose a mediator, consider the various styles and types of mediation that are available to help resolve your conflict.

Styles Of Mediation

Facilitative Mediation: In facilitative mediation which is also called traditional mediation, a professional mediator attempts to facilitate negotiation between the parties in conflict. Instead of than making recommendations or imposing a decision, the mediator encourages disputants to reach their own voluntary solution by exploring each other’s deeper interests. In a facilitative mediation, the mediator tends to keep their own views regarding the conflict hidden.

Court-Mandated Mediation: Although mediation is typically defined as a completely voluntary process, it is possible that it has been mandated by a court that is interested in promoting a speedy and cost-efficient settlement to an issue. When negotiators and their attorneys are reluctant to engage in mediation, their odds of settling through court-mandated mediation are low, as they may just be going through the motions. However, when parties on both sides see the benefits of engaging in the process, settlement rates are much higher.

Evaluative Mediation: Standing in direct contrast to facilitative mediation is a type of mediation called evaluative mediation. In this type of mediation mediators are more likely to make recommendations and suggestions and to express opinions. Instead of focusing primarily only on the underlying interests of the parties involved, evaluative mediators are more likely to help parties assess the legal merits of their arguments and make fairness determinations. Evaluative mediation is most often used during court-mandated mediation, and evaluative mediators are often attorneys who come with legal expertise in the area of the dispute.

Transformative Mediation: In transformative mediation, mediators focus on empowering negotiators to resolve their conflict and encouraging them to recognize each other’s needs and interests. This type of mediation was first described by Robert Baruch Bush and Joseph Folger in their 1994 book “The Promise of Mediation”. Transformative mediation has its roots in the tradition of facilitative mediation. At its most ambitious, this mediation process aims to transform the parties and their relationship through the process of acquiring the skills they need to make constructive change.

Med-Arb: In a med-arb mediation, a mediation-arbitration hybrid, parties will first reach agreement on the terms of the process itself. Unlike in most other types of mediations, they typically agree in writing that the outcome of the process will be binding. Next, they will attempt to negotiate a resolution to their dispute with the help of a mediator. If the mediation ends in an impasse, or if issues remain unresolved, the mediation process isn’t over. At this point, parties can move on to arbitration to resolve their issue. Now the mediator can assume the role of arbitrator and render a binding decision quickly based on their judgments. This can be done either on the case as a whole or on the unresolved issues. Alternatively, a separate arbitrator can take over the case after consulting with the mediator.

Arb-Med: In an arb-med mediation a trained, neutral third party hears disputants’ evidence and testimony in an arbitration; writes an award but keeps it from both the parties. The mediator will then attempt to mediate the parties’ dispute; and unseals and issues their previously determined binding award if the parties fail to reach agreement. This process removes the concern in med-arb about the misuse of confidential information, but keeps the pressure on parties to reach an agreement. Notably, however, the mediator cannot change their previous award based on new insights that are gained during the mediation.

E-mediation: In an e-mediation, a mediator provides mediation services to parties who are located at a distance from one another, or whose conflict is so strong they simply can’t stand to be in the same room. If you want it to be, E-mediation can be a completely automated online dispute resolution system with no interaction from a third party at all. However, an e-mediation is more likely to resemble traditional facilitative mediation, delivered at a distance. Thanks to modern video conferencing services such as Teams, Skype and Google Hangouts, parties can now easily and cheaply video communicate with one another in real time, while still benefiting from visual and vocal cues. Early research study results has suggested that technology-enhanced mediation can be just as effective as traditional meditation techniques. Moreover, negotiators often find it to be a low-stress process that fosters trust and positive emotions.

What All Of This Means For You

I’d like to be able to tell you that every negotiation that you will be involved in will go smoothly. However, as we all know, that is not always the case. There is always the possibility that during the course of your next negotiation, you will eventually run into a wall. Both sides will be at a disagreement and neither side will be able to come up with a way to bridge the gap between your two positions. When this situation occurs, you should not give up hope. Understand that you have a potential solution to a problems like this: mediation.

When you decide to use a mediator in order to resolve a dispute that has arisen during a negotiation, a trained mediator will try to help both sides find common ground. There are many different styles of mediation that can be used to resolve an issue. Traditional mediation is called Facilitative Mediation and a mediator works with both parties to find a resolution. Court-Mandated Mediation is used to find a speedy resolution to a problem. In an Evaluative Mediation fairness the focus is on what is fair for both parties. There are an additional three styles of mediation.

We never want to get involved in a negotiation that goes nowhere. Instead, we want to make sure that every negotiation that we are involved in can eventually result in a deal for both sides. There will be times that our negotiation grinds to a halt because we are not able to see eye-eye with the other side. In cases like this we need to realize that mediation might be the solution that we need. Understanding that there are multiple different types of mediation can be the key to choosing the right one for our given situation. If we can select the right style of mediation for our negotiation, then we have a very good chance of getting things back on track.

– Dr. Jim Anderson Blue Elephant Consulting –
Your Source For Real World Negotiating Skills™

Question For You: Which style of mediation do you think that a negotiator should start off with when they decide to mediate something?

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What We’ll Be Talking About Next Time

What would you say that your management style is? It’s fair to say that we all have different styles and each one of them comes with a set of advantages and disadvantage. If it turns out that your management style is authoritarian then you may run into some problems when you go to negotiate. Your management style serves you well in the office. You know what you want, you clearly communicate it to people, and they do what you have asked them to do. Life is pretty simple. However, in a negotiation things are not going to go that way and so you are going to have to find out what kind of adjustments you are going to have to make in order to be successful.