Mediation is much like Arbitration with one significant difference. In Arbitration, the Arbitrator or Neutral, considers testimony and evidence, and at the conclusion of the proceedings, issues a formal Arbitration Award making findings and rulings (much like a judge), and enters an award or verdict (like a judge or jury) determining which party wins and which party loses, and if money is at issue, the amount awarded.
In Mediation, the Neutral, still hears generally the same testimony and evidence (albeit in a much more summary or condensed format), and instead of issuing a ruling or award, acts to “facilitate” a resolution of the dispute which is acceptable to both parties. Mediation by its nature is a non-adversarial method of alternative dispute resolution (ADR) in which a neutral third party helps resolve a dispute. The mediator does not have the power to render a final decision on the matter or order an outcome. If a mutually satisfactory resolution cannot be reached, the parties can pursue either formal binding arbitration, or a civil lawsuit.
Mediation is often used to help a divorcing or divorced couple work out their differences concerning alimony, child support, custody, visitation and division of property. Business attorneys also frequently use Mediation as a pre-requisite to and in advance of even those instances where there is a formal arbitration agreement. The thought being that even if the entire business dispute cannot be resolved through voluntary mediation, the procedure (mediation) itself lends itself greatly to focusing the parties and their attorneys on the core nature of the dispute at hand. Mediation in this regard is useful to limit the issues which actually require arbitration, and generally results in the parties agreeing to completely withdraw or otherwise resolve some of the ancillary disputes between them.
Most construction contracts, and many other business forms, now include what are referred to as “Med-Arb” clauses. Mediation is attempted first, and then if a complete resolution is not reached, the remaining disputes are submitted to binding arbitration – oftentimes to the same Neutral (this author is of the opinion that a Mediator cannot effectively and fairly also become an Arbitrator in the same dispute. While there are some advantages of the Mediator taking on this additional subsequent role, the very nature of Mediation is one built on trust between the parties, their attorneys, and the Mediator. Part of that trust is the full and fair disclosure of information to the Mediator by a party which would never happen in the Arbitration process itself. Fearing an unsuccessful mediation, a party would be reluctant to such full disclosure thereby defeating the process, and leading to the failure of the mediation itself.
Within the mediation process itself, there are generally two types of Neutrals. Facilitative and Evaluative.
1. Facilitative Mediation
In facilitative mediation, the Neutral structures a process to assist the parties in reaching a mutually agreeable resolution. The Neutral asks questions; validates and normalizes the parties’ points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing various options for full or partial resolution. A facilitative Neutral 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.
Facilitative mediators want to ensure that parties come to agreements based on information and understanding. They predominantly hold joint sessions with all parties present so that the parties can hear each other’s points of view, but also hold separate caucuses regularly.
2. Evaluative Mediation
Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative mediator typically starts out using the facilitative role, but then when an impasse is reached, further assists the parties in reaching resolution by pointing out the weaknesses of their cases, or in predicting what a judge or jury would be likely to do. Most former judges are effective evaluative mediators since they generally have extensive first hand knowledge of what a judge or jury would (or has done) in similar situations. An evaluative mediator will also make recommendations to the parties as to the outcome of the issues. When an impasse is reached, the mediator might also make a formal recommendation or how he/she believes the dispute should be resolve. Evaluative mediators are generally concerned with the legal rights of the parties rather than their needs and interests. Evaluative mediators typically meet in separate rooms with the parties and their attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation. The evaluative mediator structures the process, and directly influences the outcome of mediation.
Transformative Mediation: (There is actually a third type of mediation – Transformative which is not covered in this article).