The Range and Breadth of Mediation – Part 2

Part 2
By Roy N Martin, Attorney
Bellingham, Washington

In the first installment of this article on the range and breadth of mediation, we discussed the three types or paradigms of mediation: Evaluative, Facilitative and Transformative. In this installment we’ll cover the strengths and weaknesses of each approach. In the final installment, I’ll make recommendations for achieving best outcomes (both in terms of settling cases and maximizing client satisfaction).

Strengths & Weaknesses of Evaluative Mediation

Primary strengths of the evaluative approach are that:

  1. The parties (and their attorneys) receive an assessment of the strengths and weaknesses of the case. It’s easy for litigants and even attorneys to lose perspective. Therefore, it can be helpful to obtain feedback from a trusted neutral expert. The more respected the mediator, the more likely the parties will be influenced by his or her opinions. This is why evaluative mediators often have extensive litigation experience.
  2. It’s the approach most likely to be effective in highly adversarial settings. It won’t typically produce the most satisfying win-win results, but it requires no particular openness on the part of the litigants. They need not be willing or able to talk about underlying interests (as in the facilitative approach) or touch into feelings and needs (as in the transformative approach) or even be in the same room.
  3. It’s the approach that attorneys are most comfortable with. Discussions tend to focus on each side’s positions (rather than interests or underlying needs) and on what would happen if the case were before the court. Since attorneys have expertise around courts and litigation, their input is especially helpful. When mediating in this model, it’s beneficial to have attorneys present – so much so, in fact, that many evaluative mediators will not work with unrepresented parties.
  4. In this model, because attorneys are an integral part of the process, it’s least problematic for the mediator to draft agreements for the parties to sign before leaving the session. Each party’s lawyer is right there to assess terms, suggest changes and bless the final version. (In other forms of mediation which may not involve having attorneys present at each session, best practice is to give the parties time to reflect on their agreements, review with counsel, and have settlement documents drafted after the session. WSBA advisory opinion 2223 posits that it’s unethical for attorneys acting as mediators to draft settlement documents for unrepresented parties. The same is equally true for represented parties whose attorneys are not present at the mediation session.)

Weaknesses of the evaluative approach are that:

  1. Since it’s driven so heavily by what the law says and by what the court is likely to order, the parties are not encouraged to look very deeply at their underlying interests. The mediator might help them to focus on the financial and emotional expense of going to court and on the risk of surrendering control. But that’s typically the extent of the discussion of interests. Settlements tend to be grudging compromises rather than true win-wins, and thus the parties are least likely to feel satisfied with the result. (Their levels of satisfaction will typically be far less than in the facilitative and transformative models when those models are effective.) Mediators have long noted this downside in their anecdotal observations but just recently, in January 2016, the Maryland Judiciary published a study in which mediation techniques were subjected to scientific scrutiny [1]. The study found that parties in evaluative settings felt pressured into agreements and believed that they did not have the opportunity to discuss the most important issues that were bothering them. They were least likely to be satisfied with both the process and the outcome. They were least likely to feel the result was fair. They were least likely to feel the result was workable. They were most likely to feel powerless. They were least likely to feel that they could have made a difference in the outcome. They were most likely to feel cynical about the court system. They were least likely to feel that anyone involved (attorney or mediator) cared about them. They were most likely to return to court within 12 months (the window of the study) to seek enforcement. (It’s also worth noting that this study found the parties no more likely to reach settlement using the evaluative model. The only high level of correlation with settlement rates was the experience level of the mediator. In other words, the more experienced and presumably skilled the mediator, the more likely the parties were able to reach positive outcomes.)
  2. The parties have least control over the outcome. By turning over the case to experts, they lose their voice and their ability to explore possibilities that exist outside the limited options available to the court. Another way to say this is that evaluative mediation, like litigation itself, occurs in the shadow of the court and is driven most strongly by what’s likely to happen if the case were to proceed to trial. Other models give the parties far more latitude to look for creative solutions that satisfy both of them even though the results may differ from anything a court would consider on its own. In fact, facilitative and transformative approaches encourage the kind of creative exploration that the evaluative model by its very nature discourages.
  3. The parties are most likely to feel resentment at a result they perceive as having been thrust upon them (by judges, the mediator, even their own attorneys). They’re far more likely to resist the orders that result from this type of mediation and they’re also most likely to need the court in the future, either to modify or enforce.
  4. Creative possibilities are discouraged or even foreclosed. The vast range of potential options that a court would ratify but not impose on its own is not explored. The parties are all but certain to wind up with a result that lives in the shadow of the court. Rather than approaching a blank canvas with a full palate of colors, they’re stuck with the far more limited options available to a judge.
  5. No real healing of underlying needs having occurred, they’re in the most challenging place from which to parent together or otherwise interact with each other going forward.

Strengths & Weaknesses of Facilitative & Transformative Mediation

Since facilitative and transformational mediation share many strengths and weaknesses, I’ll first address those common to both. Strengths of these approaches are:

  1. The parties are encouraged to look at their underlying interests and seek out win-win agreements. They’re not limited by the narrow range of options available to a court, but rather have the entire range of creative possibilities available to them.[2]
  2. The parties do not give away their power to a stranger who does not know them. Instead, they retain control of both the process and the agreements reached.
  3. The parties are most likely to reach agreements that resonate for them as just, fair and workable. They’re most likely to feel ownership of their agreements since the terms were reached through a process that maximized their ability to address underlying needs and make their own choices. Since people feel ownership of agreements chosen freely, it’s unlikely they’ll resist the terms or find themselves having to file with the court to force compliance or revise the terms.
  4. Since attorneys are frequently not present for the bulk of these discussions, facilitative and transformative approaches are typically more cost effective when employed in well-suited cases.[3]
  5. Parties are far less likely to be unhappy with the process or to become cynical about “the system.” They are also more likely to be happy with the professionals involved. In my experience, they pay their attorneys (and the mediator) willingly and express gratitude freely. Bar complaints become rare when negotiations are interest-based (as in a facilitative setting) or empathy-based (as in a transformative setting).

Weaknesses common to facilitative and transformative approaches are:

  1. When attorneys are not present, and even more so when attorneys have not been consulted, the parties are less likely to understand their rights and obligations. This may make settlement more difficult because ultimately every agreement should be knowing and voluntary. (For this reason, though attorneys need not be present under these models, it’s important for parties to review their tentative agreements with counsel before signing and also to obtain assistance in drafting documents.)
  2. Many participants prioritize minimizing costs. Others are afraid that attorneys will not understand their reasons for negotiating the specific terms of their agreement and try to talk them out of it. Thus, some couples attempt to avoid attorneys entirely – or simply have a single attorney draft the documents, leaving the unrepresented party vulnerable.
  3. Power imbalance makes mediation in any form difficult and non-directive forms of mediation most difficult of all. When dealing with parties who have interpersonal relationships, if there’s domestic violence or other control issues, what looks at the surface like a win-win agreement may actually be merely another victimization of the disadvantaged party. Therefore, when there are indications of dysfunctional and asymmetric communication dynamics, caution is warranted. (It’s important for everyone associated with courts – judges, attorneys and mediators – to be trained in spotting indications of power imbalance. However, it’s particularly important for facilitative and transformational mediators to have such training since they’re often working without the benefit of advocates for the parties close at hand.)
  4. Not all people are open to approaches that require authentic communication. Some are not able to have such discussions because of emotional or cognitive limitations. Others are capable but unwilling even if it means giving up control of the outcome to a third party. Since the transformative approach requires the most willingness to explore feelings and needs, it’s the approach least likely to be acceptable to clients who lack an appreciation of its potential benefits.

A challenge unique to transformative mediation in particular is that, with its focus on relationships, it can seem like counseling. Some people are not willing to discuss feelings or be vulnerable (though it’s important not to forget that other clients may feel empowered by such an approach). Some may not want to expend the time, effort or money required to resolve challenges in the relationship (though, again, it’s important to remember that others may see such efforts as an opportunity to reach the best possible outcome).

Regardless of approach, clients deserve to understand what they’re signing up for including the advantages and challenges of each approach. It’s also important to know that choices regarding types of mediation are not binary. It’s perfectly possible to mix and match styles on the fly depending upon what’s working in a particular case. There are mediators who stick narrowly to a particular approach but I’ve long felt it best when mediators have the skill and willingness to navigate the full range of options. Sometimes, even in a clearly evaluative setting, when everyone agrees an evaluative approach is called for, things will nevertheless open when a party is given a chance to explore interests, feelings or needs. By contrast, even in a fully transformational setting, there may be times when a party will benefit from understanding that, at least from a court’s point of view, an offer that’s on the table would be seen as generous. My preference is to steer clear of an evaluative approach when other approaches are effective because facilitative and transformative models offer the higher satisfaction and most lasting results. At the same time, it makes no sense to treat mediation like a religion. Whatever approach produces the best results in a particular case, including whatever mix and match of styles works best for a particular set of disputants, with their unique mix of strengths and weaknesses, is the right approach for that case.

(End of Part 2. In Part 3 of this article, I’ll make recommendations for achieving best outcomes.)

[1] http://www.courts.state.md.us/courtoperations/pdfs/districtcourtstrategiesfullreport.pdf

[2] The mediator must of course be conscious of which agreements will be enforceable once ratified by a court and which a court might refuse to either ratify or enforce. He or she must also make sure the parties are aware of such limitations. Best practice is for mediators to refrain from drafting settlement documents and instead just prepare a document setting forth understandings of the agreements reached for the parties to take to their respective attorneys for review and drafting into enforceable contracts, decrees and orders. Therefore, it’s a good idea for the mediator to specify which agreements are intended to be legally enforceable and which are understood by the parties to be aspirational. There’s typically value in not limiting the parties to agreements that are enforceable since most people who are satisfied with their agreements feel ownership over the terms and will do their best to honor both aspirational and enforceable terms. At the same time, for obvious reasons it’s important for parties to understand which portions of their agreements are legally enforceable and which are probably not. This is one of the reasons why it’s important for unrepresented parties to consult with attorneys before entering legal agreements.

 

[3] There are obviously cases not suited to these approaches. However, it’s often not possible to know for sure since all human beings have certain needs that get addressed in facilitative and transformative settings but not in litigation or evaluative mediation. As one gains appreciation for these approaches and confidence in their effectiveness, one’s view of the realm of appropriate cases is likely to expand. In addition, hybrid approaches (employing multiple mediation techniques) make a lot of sense when the parties and/or their attorneys want to maximize chances of settlement and minimize chances of litigation. A hybrid approach can involve using a single mediator well versed in all styles of mediation or a team of two mediators with complimentary skills.

Continue to the next article in this series.


Roy N Martin, Attorney

119 N Commercial St #910
Bellingham, WA 98225
360-746-0400
roymartin@creativedivorce.com
www.creativedivorce.com

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