Table of Contents of this Article:
By Elizabeth Link. She is a San Francisco mediator who routinely uses all three mediation styles in her cases.
Mediation falls into three distinct styles – facilitative, evaluative, and transformative-and a savvy mediator will be well trained in all of them, ready to deploy the right tool depending on the demands of the case.
A facilitative mediator helps the parties come to agreement by asking questions; validating points of view; identifying underlying interests; and helping to analyze options for resolution. The mediator will not make a recommendation or give an opinion regarding the likely outcome of the case.
For example, consider the case of Emma Employee, who has filed a wage and hour lawsuit against Retail Detail, a chain store where she worked. At mediation, Retail Detail admits liability. A facilitative approach reveals that the impasse results from the defendant’s financial status – the business lacks the funds needed to settle Emma’s claim. The mediator, using a facilitative style, helps the parties to explore creative options, one of which involves giving Emma gift certificates to its stores. This solution protects the chain’s cash flow while allowing Emma to get the money she needs because the gift certificates are readily transferable to third parties.
Attorneys tend to be most familiar with evaluative mediation because it closely tracks methods used in judicial settlement conferences. An evaluative mediator points out the strengths and weaknesses of the parties’ positions and predicts the likely outcome in a contested proceeding. They usually are more concerned with the parties’ legal rights than with their underlying interests.
Evaluative mediators should have relevant subject matter expertise. A case in point involves Larry Landowner, who has purchased a landlocked property: The only way to reach Larry’s property is by driving through a private alley owned by Elliott Easement. When Larry applies for a building permit, Elliot objects on the ground that visitors will be using his alley without permission. Larry then sues for an easement by necessity. Elliot’s counsel steadfastly insists there is no legal right to such an easement. They call in an evaluative mediator with substantial experience in real estate, who credibly explains that the court will probably grant Larry the requested easement. In this case, an evaluative approach helped the parties resolve a core legal question, which allows Elliott and Larry to focus on the mechanics of creating the easement and the price to be paid for it.
Transformative mediation focuses on the parties’ understanding of the conflict and offers the potential to transform the parties and their relationship. Transformative mediators enable each participant to define his or her own issues, while also fostering acknowledgment of the adversary’s needs, interests, and point of view. This model is particularly useful when parties want their business or personal relationship to continue after the dispute concludes. It can be particularly helpful in emotionally charged cases.
Take the case of Lucy Landlord and her former lessee, Tammy Tenant. Lucy has sued Tammy to recover substantial damages to the premises. Tammy has countersued for habitability violations. At mediation, it becomes clear that Tammy intends to aggressively pursue her counterclaims, which dwarf the value of Lucy’s original damage claim. This puts Lucy in a no-win situation: Her attorneys fees will in all likelihood exceed the recoverable damages.
Lucy is upset. She takes great pride in her well-maintained property. A transformative mediator helps her understand that – strictly as a business decision – she should walk away from her claims against Tammy. When Lucy begins to cry, it becomes clear that there is more to the story. She says that what she really wants is an apology, since Lucy has developed a personal relationship with Tammy and feels like a grandmother to the younger woman’s children. When Tammy and her family moved out and did not return Lucy’s telephone calls, Lucy was deeply hurt.
Acknowledging this added dimension is crucial to resolving the conflict. When Tammy is approached about a possible apology she quickly agrees, since she feels a special connection to Lucy as well. Tammy apologizes, and each side dismisses its claims.
Mediations are fluid proceedings. Adept mediators will react effectively, implementing a different style when necessary. That’s when mediation magic occurs.