Mediation has an important role to play in the UK legal framework. Increased court fees and a reduction in legal aid means alternative dispute resolution (ADR) and mediation in particular, are in the spotlight as a method of realistically resolving a dispute.
Perhaps currently underused and undervalued as a way of resolving conflict, mediation has many benefits; not least the avoidance of costly legal fees. Here is an outline of the main styles of mediation, the differences between them and how important it is to choose the right style of mediation, to reach an effective agreement.
Evaluative mediation comes with an assumption that the disputants want or need guidance, knowledge or expertise, in order to reach an agreement. Therefore, evaluative mediators are more likely to be law professionals who have substantive knowledge in the subject matter. Because of this, the evaluative style of mediation is more likely to replicate some of the court process. You can expect extensive questioning, suggestions for resolution options and encouragement in settlement.
The mediator may be less concerned with the underlying causes of conflict and more interested in whether the agreement has a legal basis. This allows the mediation to mirror the outcome of the legal process it is replicating, without the delay, risk or expense of an adjudicated process.
An evaluative mediator is directional. They will steer the meditation and play an active role in progressing the parties towards settlement.
Facilitative mediation assumes the mediator’s role is to clarify the issues and facilitate effective communication between all parties, so they can decide on an appropriate settlement for themselves.
This style of mediation can often be emotionally charged. Negotiations are based on principles rather than strategy, which legal professionals often employ in court proceedings. It is therefore considered more effective at changing attitudes that would otherwise impede the negotiation progress. Facilitative mediation tends to be more healing and have less arbitrary outcomes. It is viewed as being more useful in transforming the parties’ understanding of each other’s position and has greater potential to repair relationships. Ultimately, this creates the opportunity for unique and dynamic settlements that a court could not reach. However, it may not always be suitable where relationships are already fraught and tensions are high.
A facilitative mediator would not encourage or force disputants towards a particular agreement or resolution. Because of this, it is often thought of as being a much fairer and more balanced style of mediation. However, equally a facilitative mediator would not intervene or protect a weaker party as an evaluative mediator would. This means there is a risk some parties may feel alienated.
A facilitative mediator will give all parties more control of the process, concentrating on maintaining order and providing structure to the mediations. They will facilitate any negotiations required to reach settlement.
Often viewed as being too therapeutic, transformative mediation explores the underlying emotional and interpersonal issues at the heart of the dispute. This style of mediation does not seek resolution of the immediate problem. The primary goal is to foster the parties’ empowerment and recognition, enabling them to approach their current problem, as well as later problems, with a stronger, yet more open view.
The mediator’s goal is to help the parties identify opportunities for empowerment and recognition. When they arise in mediation conversation, the mediator will help the parties choose whether and how to act upon these opportunities, and ultimately change their interaction from destructive to constructive.
Emotions are seen as an integral part of the conflict process; transformative mediators will encourage expression. This contrasts with facilitative and evaluative mediation which tend to be more factually based.
Transformative mediation is unlikely to be appropriate where the case is purely financial. However, where maintaining and healing the relationship between the disputants is the primary aim, it can be very beneficial. It is often useful in neighbourhood disputes, as this style of mediation assists in helping one party to see another’s point of view.
Avoid legal fees
Whichever style you choose, mediation is a proven method of dispute resolution and is an effective alternative to costly legal proceedings. However, the right attitudes of all parties must be in place for mediation to even be considered. Namely, cooperation and willingness to find a resolution.
Depending on the style of mediation chosen, it can also provide you a fresh pair of eyes. Considering the case from new can provide new ideas for resolution or a perspective you hadn’t considered before. The practical benefits of time and cost are important but you should also consider the benefits of repairing relationships. Relationships that may have to exist for many years to come.