Classification of Mediation

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article distinguishes and compares the three principal approaches to mediation within Alternative Dispute Resolution: facilitative or interest based mediation, evaluative mediation, and rights based mediation. The author describes facilitative mediation as resting on two guiding principles, party self determination and a neutral third party who improves communication, surfaces underlying interests and opens creative options beyond the legal frame, on the assumption that the parties themselves understand their situation best. Evaluative mediation is presented as a process in which the mediator draws on professional knowledge, law, industry practice and norms to assess the strengths and weaknesses of the parties’ positions and to predict likely court outcomes, a form frequently used in court mandated mediation. Rights based mediation is described as focusing on legal rights, established standards and norms, aiming at outcomes consistent with what a court would achieve, and resembling adjudicative but non binding procedures such as non binding arbitration. The author notes that rights are often unclear or contradictory, which is precisely why parties turn to a third party, and closes by contrasting these approaches with the interest based objective of a solution that satisfies all concerned.

KEYWORDS *

Alternative Dispute Resolution, mediation approaches, facilitative mediation, interest based mediation, evaluative mediation, rights based mediation, self determination, neutrality, non binding arbitration, legal merits, underlying interests

INTRODUCTION

The Alternative Dispute Resolution (ADR) has different forms. Mediation is one of these and it is a dialogue process designed to capture the parties’ insights, imagination, and ideas and facilitate the dialogue to come to a solution to the dispute. Alternatively, the conflict may be resolved by one disputant choosing to abandon the claim or, alternatively, by his or her opponent’s choice to allow it.

There is considerable debate in the field of conflict resolution about these different approaches and styles of mediation and different approaches which can be applied to resolve disputes in the context of mediation. There are three general types of mediation approaches: (a) facilitative or ‘interest-based mediation, (b) evaluative mediation, and (c) rights-based mediation.

Facilitative meditation (Interest-based) assists disputing parties to evaluate their own situation and letting them mutually make their own decisions. The method provides only process assistance for negotiation and using Interest-based approaches. Evaluative mediation provides suggestions or recommendations. The classic role of Evaluative Mediation is to make decisions and give opinions with respect to the merits and likely outcomes of disputes, using predetermined criteria to evaluate evidence and arguments presented by adverse parties. In the case of Right-based mediation, the procedure includes finding facts by properly weighing evidence, judging credibility and allocating the burden of proof, determining and applying relevant law, rules, or customs, and rendering an opinion.

MAIN CORPUS

The Interest-based is based on two guiding principles: firstly, that of self-determination of the parties with respect to the resolution of their disputes and, secondly, that of the neutral third-party facilitator who facilitates communication among the parties, promotes understanding of the issues, focuses the parties on their interests and seeks creative problem-solving, including creative solutions outside the legal normative box, in order to enable the parties to reach their own agreements and resolutions to their problems.

The method focuses on the negotiation, help them in identifying the issues, finding common underlying interests, and formulating proposals to resolve the dispute. It does not provide assessments or predictions. This approach emphasizes the underlying needs or interests of the parties and encourages a broader range of solutions or resolutions to the dispute which address the underlying interests, business or otherwise, of the parties instead of, or in addition to, legal interests. The method while exploring parties’ interests, the problem to be solved takes on new dimensions. The parties at an impasse may discover several possible solutions to their problem, and may also discover shared compatible interests.

The process encourages the disputants to assess their own position. By encouraging the parties to explore underlying interests, which are the needs that motivate any legal position taken, they are in effect defining the real problem. The Mediator focuses on mutuality and satisfaction for both sides because their aim is to reveal both “stated demand” as well as “interests,” the underlying issues and feelings which may otherwise remain unexpressed or concealed in a particular dispute.

The mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Thus, facilitative mediation assumes that his principal mission is to clarify and enhance communication between the parties in order to help them decide what to do.

Evaluative mediation is a process that may include an assessment by the mediator of the strengths and weaknesses of the parties’ cases and a prediction of the likely outcome of the case on the basis of law and rule of the country. An evaluative mediator evaluates the dispute based on his or her professional knowledge and experience but allowing the parties to use this expert knowledge during mediation. An evaluative mediator provides the parties with information regarding the strengths and weaknesses of their positions and may predict likely court outcomes in case of a legal battle. The evaluative process draws on law, industry practice, culture and norm, and other authoritative guidelines to provide direction to the participants on appropriate grounds for a settlement. It can have a strong impact since it is coming from the mediator. The knowledge of the Mediator regarding related law and understanding of the case has an impact on the outcome. The experience, training of the Mediator plays a role in the outcome of the process.

Instead of focusing primarily on the underlying interests of the parties involved, evaluative Mediators may be more likely to help parties assess the legal merits of their arguments and make fairness determinations. Neutral evaluation is a reasonable service that parties may want to attain. She may only help the parties explore the law related to the case, as argued by the parties.

Evaluative Mediation is most often used in court-mandated mediation. The goals of such mandatory mediation are best achieved, and the parties know what to expect from the court. It is a process where a third party would offer an evaluation of the legal merits of a dispute. A rights-based approach focuses on the legal rights of the parties and attempts to achieve a resolution that meets the relevant legal criteria of the dispute in a manner that is consistent with resolutions achieved in a traditional court setting. Different legal rights are more pertinent since conflict results in human rights violations, and human rights violations can result in conflict.

A conflict resolution method that focuses primarily on standards or established rules is called a “rights-based” procedure. A method that focuses primarily on standards or established rules is called a “rights-based” procedure. This approach focuses on the legal rights of the parties and attempts to achieve a resolution that meets the relevant legal criteria of the dispute in a manner that is consistent with what would be achieved in a court setting. This will often lead to a process whereby a third party would encourage the parties to evaluate or even offer an evaluation of the legal merits of the dispute.

When people in conflict choose to rely on standards or “rights,” they commonly do so because it may seem either sensible and/or more persuasive to them take as a benchmark that has some legitimacy outside of their own dispute. Some of these “rights” go beyond common practice and are formalized in law, policies, or contracts. Other rights are closer to what we might consider “norms,” socially accepted standards of behavior within a particular culture for such concepts as “reciprocity,” “precedent,” “ethics” and “fairness.”

Sometimes rights are unclear. Usually, the lack of clarity is because there are different—and somewhat contradictory—standards that might apply and that might be appealing to only one of the disputants. Reaching an understanding of rights, where the outcome will determine who gets what can, therefore, often be difficult, leading the parties to turn to a third party to help them determine whose position has more merit.

SUMMARY

The right-based procedures involve a third party adjudication. A third party (judge) has the power to adjudicate and hand down a binding decision and mediation is a third party that manages the agreement-seeking process and may provide general information about applicable standards, but does not have the power to decide on the content of the agreement.

CONCLUSION

The rights-based mediation processes are similar to adjudicative processes such as non-binding arbitration. In non-binding arbitration, the disputing parties put their case before an impartial third party who renders an opinion or recommendation, which the parties may choose to accept or not. Thus, the process is adjudicative, or determinative but not binding or enforceable. When disputants adopt an interest-based approach, they do so with the understanding that their objective is a solution that satisfies all concerned. This method focuses primarily on the needs and concerns of the parties in conflict is called an “interest-based” procedure.

POTENTIAL SOLUTION *

The tension this article maps is a live one in daily practice: parties often want both the freedom to design their own solution and the reassurance of knowing where they stand legally. Treating the three approaches as competing schools forces an unnecessary choice. A practical resolution treats them as sequenced tools within one process, governed by informed consent.

First, choose the approach with the parties, not for them. At the outset the mediator should explain the three modes in plain language and ask the parties to agree which they want, and under what conditions the mode may change. This single conversation prevents the most common complaint in mediation, that a party expected a facilitator and encountered a judge, or expected guidance and received only questions. The agreement to mediate should record the chosen approach explicitly.

Second, begin facilitative and stay there as long as it is productive. Interest based work does what no evaluation can: it uncovers needs the legal frame never captures and generates options a court could never order. Since most disputes contain more interest than law, the facilitative phase usually produces the durable core of any settlement.

Third, admit evaluation only on request, only transparently, and only late. When parties deadlock over their differing predictions of a court outcome, a reality test is often the key that turns the lock. Safeguards make it safe: the evaluation is given only if both parties ask for it, is framed as a range of probable outcomes rather than a verdict, is delivered to both sides in the same words, and is expressly non binding. Where the mediator’s own credibility might distort the process, the cleaner solution is a separate neutral evaluator, leaving the mediator’s impartiality untouched.

Fourth, use rights as a floor, never as a ceiling. Legal and normative standards protect the weaker party from an agreement that merely reflects power, so a mediator should ensure both sides know their rights before signing, encouraging independent legal advice where the stakes warrant it. Above that floor, the parties remain free to trade, invent and exceed what any court could award.

Handled this way, the debate the author describes resolves itself: facilitative mediation supplies the method, evaluation supplies the reality check, and rights supply the protective boundary, with party self determination governing the movement between them.

* Added by the WMO Editorial Team

REFERENCES *

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