More Considerations when Selecting a Mediator -– Mediation Styles

Last week I set out some functions and roles mediators serve. This week I want to write about mediation “styles.” Many mediators claim to practice with a certain style. The two basic types of mediation style in commercial, environmental and policy mediation are the so-called “facilitative” and “analytical” styles. Analytical is also sometimes called evaluative -- but see below for more on that. Often mediators will have information about their “style” on their web site; if not, ask them.

Mediators who practice as “facilitative” mediators focus mainly on process to ensure adequate communication and appropriately contain emotions. Facilitative mediators see themselves as responsible for only process and do not have an interest in the merits. They generally refuse to express views on the merits of a dispute. From the list of techniques in last week’s post, facilitative mediators tend not to play the roles of Substantive Evaluator, “Heavy” or “Scapegoat,” Lawyer or Technical Expert, Head Banger or “Closer.”

“Analytical” mediators, on the other hand, actively participate in discussions (generally privately) about the strengths and weaknesses of each party’s issues; may opine (generally in private sessions) on fairness or possible judicial or administrative outcomes; often work with parties privately to develop settlement options; and actively push parties toward settlement. They tend to employ the full range of the techniques I listed last week.

There is a difference, in my opinion, between strictly evaluative mediators and analytical mediators. Evaluative mediators tend to opine more often and more directly on the ultimate merits of the case. In many ways evaluative mediators are closer to non-binding arbitrators where they hear the parties’ cases and express a view about the final result.

Analytical mediators, on the other hand, work so that the parties develop the agreement, not the neutral; however, when useful, analytical mediators are willing to discuss strengths and weaknesses of parties’ arguments.

Both techniques are valuable, but analytical mediators are true mediators -– in that they work with the parties to assist them to reach agreement, while evaluative mediators are closer to non-binding arbitrators -– in that they listen to the parties’ cases and express an opinion about how they should settle. However, both techniques are mediation in that no mediator, whether facilitative, analytical or evaluative has the power to decide the issue.

There are two schools of thought regarding mediation styles. Obviously much depends on the nature of the case, the parties and, as I will discuss in next week’s post, parties’ experience with or the reputation of the mediators. One school suggests that mediators should not become involved in the merits of the case, rather the neutral should simply address the process issues. The other school suggests that the mediator should assist the parties on the merits of the issues in the interests of settlement. The best mediators use both process and analytical skills.

Next week I will discuss some of the actual mechanics of mediator selection.

Keywords: mediation, mediator, how to chose a mediator, adr, alternative dispute resolution, analytical, evaluative, facilitative