By Roy N Martin, Attorney
Most attorneys employ mediation with skill and effectiveness. Few, however, are familiar with the range and potential of mediation options. Many cases that don’t settle now could settle if the range and breadth of options were better understood. In addition, even among cases that currently settle, a subset would achieve more lasting settlements with higher levels of client satisfaction if the best option for the case were effectively applied.
There are many ways to slice and dice the field of mediation. In this first installment, I’m going to set forth a paradigm that’s pretty standard among mediators; a division into three paradigms or models. In the next installment, I’ll discuss the strengths and weaknesses of each approach. Finally, in the last installment, I’ll make recommendations for attorneys to achieve best outcomes (both in terms of settling the case and also achieving the highest possible levels of client satisfaction).
The three types of mediation are evaluative (sometimes called “directive”), facilitative (sometimes called “non-directive”), and transformative (which is really another flavor of non-directive though this term isn’t typically applied to the transformative model).
The examples I’ll use throughout this article to illustrate similarities and differences between approaches will be mainly from family law, since that’s where my experience lies. But please do not take that to mean that these approaches work only in the family law context. In truth, they are broadly applicable.
Evaluative or directive mediation is the model with which attorneys are most familiar. In this model, the mediator is typically someone with authority (often a former judge or experienced litigator in the specific area of law at issue in the case). In this paradigm, the mediator evaluates what he or she considers likely outcomes if the case were to proceed to trial and brings that information to the parties to guide the case toward resolution. An evaluative mediator will not hesitate to offer his/her knowledge and opinions, and such guidance is an integral part of the process. In this model, the parties are typically in separate rooms and the mediator shuttles back and forth. It’s unusual for the parties to speak directly to each other.
This is the model in which attorneys are most likely to be present – for a couple of reasons:
First, attorneys know and trust this model since its focus is on what would most likely happen if the case were adjudicated;
Second, because the evaluative model relies on each party’s understanding of the law as well as the strengths and weaknesses of the case, attorneys are well placed to provide input on the evaluative information received and help their clients grasp its implications.
In fact, many evaluative mediators are not willing to work with pro se parties. Many are similarly unwilling to allow the parties to be in the same room, even after agreement has been reached. There are cases for which this approach is well suited. However, it tends to be overused because it has become, for most attorneys, the default option without consideration of whether other approaches or combinations of approaches might lead to better results.
In facilitative mediation (sometimes called non-directive mediation), the focus is on creating an environment that promotes effective dialogue between the parties. Unlike evaluative or directive mediation, the mediator does not assess what a reasonable settlement should be. Instead the focus is on assisting the parties in achieving a settlement that meets their needs. Despite this focus, it remains important for the parties to have an understanding of their legal rights and obligations (because every settlement should be negotiated from a place of understanding and be voluntary). However, the primary focus isn’t on the law but rather on finding options that meet the parties’ mutual needs. In other words, there’s the realm of what the law considers just or fair, and then there’s the realm of what the parties consider just or fair – and the two may be similar or very different. The facilitative approach does not presume that the best solution is necessarily the one to which the law defaults. The law, as created by statute and legal precedent, may differ from what works best for a particular set of parties. Facilitative philosophy views the parties themselves as most qualified to decide what works best for them – though always with full knowledge of their legal rights and obligations.
Courts typically have a narrow range of options. The parties themselves can explore a far broader range that a court would sanction or approve so long as the parties have freely chosen such terms for themselves. An example of this in the divorce context is “nesting,” in which the children stay in the family home and the parties themselves rotate who resides there according to the residential schedule. Another is when a couple decides to share a property, perhaps with one residing in the main residence and the other in a guest house on the grounds. Yet another is when the parties elect to jointly own a business, home or another asset, either for an indefinite duration or for a specific length of time. Or consider a couple that decides to abrogate the law on relocation so that rather than there being a presumption in favor of continued residence with the primary residential parent, there will instead be a presumption in favor of the children remaining in Whatcom County or perhaps no presumption at all.
The court would not force such outcomes, sua sponte. But such solutions might be right for particular parties. The facilitative model presumes the parties themselves know their own needs better than does any court and, working together in good faith, can create far more optimal terms than what a court would order absent such agreement (or, for that matter, what the parties would likely agree to if the negotiation took place in the shadow of the court, the result of evaluative mediation). In a facilitative setting, the parties have far greater freedom to pick and choose the settlement options that appeal to them.
In this type of mediation, the parties spend most of their time in the same room. They may discuss issues they’ve tried (and failed) to resolve in the past, but the mediator employs a variety of skills and tools to maintain the flow of the conversation and help the parties understand each other fully. Examples of such techniques are conversation ground rules, reflective listening, reframing, validation and the like. The goals of this approach are:
- To help each person hear the other fully;
- For each to know they’ve been heard;
- To tap into the parties’ underlying interests that exist beneath the positions with which they typically present. For example, someone who says “I need to have equal parenting time!” – a position – might realize that he’s seeking reassurance that he won’t lose connection with the children. Someone who says, “I must have $3,000 a month spousal maintenance!” might realize the underlying issue is “I need to know I’ll have enough resources to pay my bills” or “I want to know I’ll have what’s necessary to return to school and get my degree” or “I’m afraid the children won’t want to spend time with me if I don’t have a nice lifestyle” or simply a sense that it wouldn’t be fair to have grossly different standards of living given the facts and circumstances of the partnership.
- To hold space for the needs of both parties to coexist. This shifts the focus from force or dominance (“If you don’t agree to what I think best, I’ll see you in court”) to finding solutions that meet both parties’ needs (the win-win).
Negotiations in the facilitative model are based not on positions but premised on the fact that each party has unique interests. At the level of positions, it might seem like they want the same thing and therefore the only way to achieve settlement is to divide a finite set of resources. However, positions are actually strategies to get to what people really want. The problem is few people take the time to notice the interests that underlie their positions.
When interests are uncovered, it becomes apparent that there are many potential ways to get what one wants. In fact, it may not be all that difficult to find ways to meet the needs of both parties. This concept is often illustrated by an old story about two boys fighting over an orange (known among peacemakers as “the orange story,” though many variations have arisen over the years). My version is: A man walking down the street sees two boys, about seven or eight years old, engaged in a fist fight, an orange laying by the curb. He grabs each by the collar, pulls them apart and says, “Hey guys! What are you doing?” They say, “We both want that orange.” So like a good citizen and responsible adult, he pulls out his pocketknife and cuts the orange down the middle. The boys walk off in opposite directions, each with half.
At the surface, this seems like a great result. The conflict has been resolved and the solution is “fair.” The man essentially acted as an evaluative or directive mediator. But the story then continues and we find out that one boy, as you’d expect, peels his half and eats the pulp. The other boy, however, is trying to earn a scouting merit badge by learning the most effective ways to start a campfire and he heard that orange peels might be helpful.
With this broader view of the needs of each boy, we see that rather than a “fair” solution in which each received 50% of what he said he wanted (the orange), they could have each received 100% of what they really wanted (the pulp / the peel). In this model, “I want the orange” is the presenting position of both parties whereas “I’m hungry” and “I need something that ignites easily” are the underlying interests.
Now, in real life, 100%/100% win-wins are rare. However, since the parties have unique underlying needs, if they work together effectively, they can generally each get far more than the 50% they’re likely to get if they proceed to court, arbitration, or a mediation setting that shares the evaluative tenor of court and arbitration. What’s more, the 50% they receive in such settings is likely to feel arbitrary and they’re likely to feel unhappy, even resentful. However, when each freely chooses to give up “this” in order to attain “that” in an atmosphere not dominated by the threat of litigation, there’s a different quality to the settlement. The choices are made freely and the ultimate agreement is theirs. They created it and they feel a sense of ownership. They’re far less likely to resent the agreement subsequently set forth in court orders or to resent each other. They’re also far less likely to break such agreements or wind up in court trying to enforce because people keep agreements when they feel ownership of the terms and good about the process that brought them to settlement.
As you can imagine, people who reach agreements in facilitative mediation settings are far more likely to feel satisfied with the process and the result than those who reach agreement as a result of evaluative mediation. Parenthetically, they’re also far more likely to appreciate your efforts in guiding them.
Transformative mediation was distilled as a model in 1994 with the publication of The Promise of Mediation by Joseph Folger and Robert Bush, though elements of this approach existed in the facilitative approach which predates it. In this model, the focus is on values of “empowerment” and “recognition.” In plain English, the focus is on opening up the kind of dialogue that allows the parties’ relationship to begin to heal (or transform).
There are many ways of guiding people through a transformational mediation process. As one long sold on the healing potential of mediation, I love most of all to play in this domain. It is where miracles happen.
When I mediate in this way (which depends primarily on the willingness and abilities of the parties and the focus of their attorneys), my goal is to help each see the dispute through the other’s eyes. My techniques come from numerous sources (which I’ve studied over the last 15 years since I was first trained as a facilitative mediator). Some of these techniques may seem to the participants similar to couples counseling. But the focus is limited to creating enough healing to allow them to reach win-win agreements.
In this process, each party must be helped to understand that seeing the world through the other’s eyes does not imply agreement. It is, rather, a gift – the witnessing of another’s truth. Agreement as to what’s happened in the past or what would be best in the future is not necessary to their achieving mutually satisfying settlement. Each must also understand that each person’s truth is valid and that each is entitled to his/her perspective. Rather than expending energy in a debate over the (Capital-T) “Truth,” which can after all never be known since God is not a party to the mediation, it’s far more effective to make space for each party to have his/her own (small-t) truth.
When people argue over whose truth is right they typically attribute motivations to each other that are almost always inaccurate. Distrust builds and communication breaks down. They bring that baggage to mediation. In an evaluative setting, they may hammer out agreements, but chances are they won’t feel great about the results. A facilitative approach opens the possibility of creative, freely chosen solutions. Transformative mediation opens the possibility of real healing which in turn makes reaching agreements effortless.
As the parties move through a process that helps them to see each other’s truth, they begin to understand why the other sees the world as she/he does. As this happens, false narratives about the other’s motives fall away. As trust rebuilds, we explore the possibility of empathy. Empathy does not imply, “You were right about everything.” Rather it means, “Now that I can see where you’re coming from, I get why things look to you as they do.” They take turns listening to each other, reflecting what was said and then saying, “You makes sense” and explaining the specifics of what was said that actually and authentically made sense to the listener.
In this process, it’s important to make sure the parties are authentic. If they try to provide validation beyond where they can sincerely go it will lead, ultimately, back to a place of distrust. They need a foundation that is, above all, truthful. Still, in all my years as a mediator, never once have I seen a couple willing to play at the transformative end of the pool who couldn’t each speak to parts of the other’s perspective that truthfully and authentically made sense to them.
People thirst for this. Imagine an argument with your significant other. Now imagine your partner saying, “You make sense.” As we go through this process, we construct a space of mutual trust. This is the space of healing. From this place, it’s not uncommon for people to offer apologies, to thank each other, to cry, to hug. It is truly transformative (and a gift to witness). Just as with other forms of mediation, the focus is not on singing “kumbayah” but rather on ultimately reaching solid agreements that will stand the test of time. Ancillary benefits of this approach are that, as hearts and minds open, people reconnect to their positive regard (dare I say love) for one another that had been covered over through miscommunication and misunderstanding.
From this place, as mediator, I don’t have to put much energy into helping find creative win-win agreements (as one does in a facilitative setting). Instead, once the space of trust has been built, I can typically step back and watch as the parties easily reach agreement after agreement on their own. In fact, what I’m listening for at this point are opportunities to reflect on how each is looking out for the other. It’s not uncommon to see people become generous and (willingly/knowingly) give more than required by law or take less than a court would believe they’re entitled to. At the same time, it’s important they’re not just acting in the energy of the moment, which can be expansive and wonderful, because no agreement will be finalized until each has spoken with counsel and, after reflection, formal agreements and orders have been prepared.
(End of Part 1. In Part 2 of this article, we’ll cover strengths and weaknesses of each approach.)