Mediation Models: What is Best?

BY DR. GARY CLAYTON

Introduction

Most of our conflicts and disputes are easily resolved; however, sometimes we need the help of a professional. Professionals can practice conflict resolution using a number of different practice models, mediation being one of those general models. Within mediation the evaluative and facilitative practice models were selected for evaluation and comparative analysis. It was concluded that while evaluative mediation is widely used and effective with respect to settlement rate, facilitative mediation is better because in addition to providing an effective settlement rate it also has the benefit of addressing the relationship issues and needs of the disputants and unlike evaluative mediation, facilitative mediation does not violate commonly promulgated mediator ethical standards and codes of conduct.

Mediation Practice Models: Which one is better?

Mediators are professionals that help people resolve disputes (Moore, 2014). Among the many different types of mediation practice models, the evaluative and facilitative models are common options (Coltri, 2004; Nahrstadt, 2016). Which one is better?

The answer may surprise you.

Disputes in Perspective

It seems as if life constantly involves some form of conflict (Moore, 2014). Most conflict is easily resolved or managed and the daily routine of most people incorporates the resolution or management of many conflicts almost unconsciously. A conflict can be defined as competition for resources (Boulle, Colatrella, & Picchioni, 2008; Coltri, 2004). Sometimes a conflict turns into a dispute. A dispute is a conflict that has caused a crisis in a relationship (Moore, 2014). Many of us have had relationship crisis (disputes) and have been able to resolve them without the help or external influence of a third party. Sometimes third parties (e.g. friends, relatives, cohorts) can offer good advice and are instrumental in helping to resolve conflicts and disputes. Sometimes the dispute requires the intervention of a third party that specializes in resolving disputes (Moore, 2014) – the professionals.

The Professionals

The United States tends to be a society that sees conflict as adversarial and negative (Coltri, 2004; Moore, 2014). We have been conditioned to look at conflict as a win-lose proposition; we celebrate our (heroize) winners and castigate our losers. Consequently, win-lose dispute resolution approaches are quite common and popular in the United States. Lawyers are professionals that specialize in adversarial and contentious forms of conflict resolution, win-lose scenarios. Our default system of justice, litigation, typically involves lawyers, judges and the legal system. This system is adjudicative and always results in a winner and a loser; it can also be quite expensive relative to the value of the actual dispute (Boulle, Colatrella, & Picchioni, 2008; Moore, 2014; Nahrstadt, 2016). Mediators are dispute resolution professionals that seek to enable the disputing parties to arrive at a non-contentious mutually acceptable resolution of a dispute or conflict. This has been referred to as a win-win approach to dispute resolution (Boulle, Colatrella, & Picchioni, 2008). It should be noted that some believe that a win-win is impossible because the concept of winning requires that there must be a loser (Kohn, 1999).

Practice models for mediators can be classified as either problem solving or relationship building (transformational) (Boulle, Colatrella, & Picchioni, 2008; Spangler, 2013). This classification suggests a mediation process predicated on the most effective way to frame and resolve the dispute from the mediator’s perspective. Problem solving mediation (e.g. evaluative, facilitative) is a process based on conflict or a dispute being viewed as a problem (presenting problem) to be resolved or managed (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013). From this perspective, mediation is about assisting the parties to the mediation in identifying the problem and then identifying a mutually acceptable resolution to the problem that addresses and satisfies the needs and interests of the disputants. Relationship building mediation (e.g. transformational, reflective mediation, humanistic and narrative mediation) involves the mediator only seeking to improve the communication and interpersonal relationships of the parties involved in the dispute or conflict. Resolution of the presenting problems is not the primary objective of relationship building mediation; resolution of the presenting problems is considered an incidental consequence of the disputants’ improved relationship (Boulle, Colatrella, & Picchioni, 2008; Phillips, 2001; Spangler, 2013).

It should be noted that most conflicts and disputes derive from communications problems or misunderstandings (Moore, 2014) making relationship building mediation an appealing best practice; however, for the purposes of this document, problem solving mediation will be investigated and discussed. Problem solving mediation is also the form of mediation most frequently utilized in court annexed matters (Alexander, 2008; Della Noce, 2009; Nahrstadt, 2016).

Problem Solving Mediation

In a mediation, the mediator’s primary tools are carefully planned and executed interventions (Bens, 2005; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014). The nature and focus of these interventions are dependent on the mediator’s choice of mediation practice model. As stated earlier there are basically two practice models of problem solving mediation: facilitative and evaluative. These practice models differ fundamentally in their approach to enabling the disputing parties to resolve the dispute or conflict (Bens, 2005; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014).

Each of these practice models will now be discussed (described) in detail. Practice model method differences will be presented by illustrating process differences contextualized in the following hypothetical mediation case:

Bob Smith contracted with Steve Johnson’s company, Elite Construction, Inc., to build a house on Smith’s property. Bob has known Steve since they went to high school together. Elite Construction has been in business for ten years and has a good reputation in the home building industry. Steve company completed construction of the house two months later than agreed to in the contract. Steve was particularly proud of the house he had built for Bob and in fact had include several upgrades that Bob had requested at no charge to Bob. Unfortunately for Steve, Bob was unhappy with the house because Bob believed that Steve used substandard doors, it was completed two months late and this had caused Bob to incur $6500 in additional living and storage expenses that he had not planned. Bob also had to cancel his vacation in order to move when the house actually became available and had to pay the travel agency $2000 in cancelation fees. Bob has threatened to sue Steve if Steve does not pay him $12,000 to cover the cost of his expenses, substandard doors, and personal frustrations. Steve is appalled by Bob’s threat and has countered with a threat to sue Bob for $15,000, which is the value of the upgrades that Bob had requested and Steve had supplied without charge. Both parties have engaged attorneys. The parties have agreed to mediate their dispute.

Evaluative Mediation

In evaluative mediation the mediator’s interventions focus on the presenting problem(s) that precipitated the conflict (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Della Noce, 2009). The mediator will assess the positions of the disputing parties (Bob and Steve) and opine with respect to the strength of a party’ position relative to the other party(s) (Adams, 2013). The mediator’s opinion can be legal or technically relevant to the subject matter that is the basis of the dispute. For example, if the mediator has a background in construction then the mediator might offer an opinion regarding Bob’s claim of substandard construction. The mediator might question Bob’s legal grounds for claiming damages caused by delay. The mediator often will question or opine on a party’s ability to prevail should the matter not settle in mediation and go to trial. Evaluative mediation relies heavily on the use of distributive negotiations strategies and tactics. Distributive negotiations assumes a fixed amount of resource (often referred to as a “pie”) available for distribution between the parties (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Della Noce, 2009).

In the hypothetical case involving Bob and Steve the evaluative mediator would usually open the mediation with a joint session (Della Noce, 2009; Moore, 2014). In the joint session Bob and Steve would typically present their respective positions regarding the dispute. Often, if attorneys are involved and particularly if legal positions are taken, the parties’ attorneys will present on behalf of their clients. Evaluative mediation tends to privilege attorney over client involvement because of the legal issues. The mediator would then separate Bob and Steve and their respective attorneys into separate rooms. The mediator would then conduct a private session with each party, typically starting with the plaintiff, in this case Bob. In the private session the mediator would assess Bob’s case and attempt to create fear, uncertainty and doubt regarding Bob’s position. The mediator’s strategy is to lower or remove settlement obstacles by casting doubt on the certainty of Bob’s position and outcome. Similarly, in a private session with Steve the mediator would assess Steve’s case and attempt to create fear, uncertainty and doubt regarding the merits of Steve’s position. It is not uncommon for the mediator to offer the same critical evaluations of the cases of both parties (Della Noce, 2009; Moore, 2014).

After an initial discussion with the mediator, Bob to accept $8500 from Steve to settle the case. Bob reasoned that $8500 were his actual loses, not counting his legal fees but he knew Steve also had legal fees. Steve considered Bob’s offer and countered by asking Bob for $6500. This $6500 represented $15,000 for the upgrades less the $8500 that Bob felt he was entitled. The mediator pointed out to Bob that it might be difficult to actually get a judge to award the $15,000 since there were no change orders to document the request and his contract with Bob required every change to be “agreed to by both parties in writing.” When Bob received Steve’s counter offer of $6500 Bob was outraged. Bob pointed out to the mediator that the contract required every change to be agreed to in writing by both parties. Bob believed that the judge would not award Steve $15,000. The mediator pointed out to Steve that even if the changes were not agreed to in writing as stipulated in the contract, a judge might conclude that Bob was unjustly enriched by the upgrades and award Steve the value anyway. The mediator would conclude that you never know what a judge or jury is going to do; if you did then your attorney could guarantee you a victory in court but he won’t. Additionally, the mediator would point out to both parties that the expense meter is running and it might cost both parties $7500 each to obtain a decision from a judge or jury; a decision that neither party could count on. After several exchanges of offers the parties agreed to walk away and drop their respective complaints; they executed a mediated settlement agreement memorializing their understanding (Della Noce, 2009).

Facilitative Mediation

In facilitative mediation the mediator’s interventions are process orientated in that the mediator’s primary strategy is to orchestrate a process that enables the parties to realize a resolution to the problem (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014). In our hypothetical case involving Bob and Steve, the mediator would have a joint opening session in which the both Bob and Steve would present their positions; however, the mediator would attempt to help the parties identify the underlying interests behind their positions (Adams, 2013). The strategy being that there may be only one way to satisfy a position but a multitude of ways to satisfy an interest (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014). For example, in the opening session Bob might state that he wanted $15,000; his interest might be that he needs the money to pay for a new vacation. If Steve knew that Bob’s interest was in a vacation he might be able to convince his wife who is the president of a travel agency to give Bob the vacation she just won in a sales contest.

Rather than break into separate sessions the mediator would attempt to keep Bob and Steve together in the same room and attempt to orchestrate a collaborative solution that addresses the interests and needs of both Bob and Steve (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014). Facilitative mediators utilize integrative bargaining versus distributive bargaining, characteristic of evaluative mediation. The idea is to identify alternatives and options that address the needs and interests of the parties that both parties can live with (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014). For example, Steve would be given the opportunity to tell Bob of the many upgrades made to Bob’s house for which Bob was not charged. This is important because it addresses relationship issues between Bob and Steve. Bob and Steve have known each other for years, the dispute represents a crisis in their relationship. Facilitative mediation offers and opportunity for the parties to rehabilitate or repair their relationship, if there is an interest. Relationships are seldom if ever addressed in evaluative mediations (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014).

Bob and Steve, with the help of the mediator, will develop a list of interests and needs. They will then collaboratively brain storm and recommend alternatives that might address those needs (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014). For instance the list of interests and needs might include the following: Steve is interested in being validated for the good work he feels he performed; Bob is interested in taking a vacation; both Bob and Steve are interested in maintaining their friendship; Steve has an interest in having Bob understand the values of the upgrades that he provided; and Bob has an interest and need for Steve to understand and acknowledge exactly how much Bob was inconvenienced by the construction delay.

During the discussion and brain storming it was discovered that the construction delay was primarily caused the upgrades that Bob had requested. The parties begin to understand that the dispute was caused by communications misunderstandings. Steve offered Bob the vacation that his wife had won in a sales contest if Bob would drop his complaint and allow Steve to show some of the upgrades to prospective clients. This type of creative solution requires collaboration of the parties and integrative negotiations which is characteristic of facilitative mediation (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014). The parties apologized to each other and agreed to have dinner with their wives later that week; they executed a mediated settlement agreement memorializing their understanding.

So Which Practice Model is Better?

Which mediation practice model is better depends on how one defines the term better. Every mediation has an objective; from this perspective the better practice model would be the one that is considered the most effective (successful) in achieving the desired objective (Alexander, 2008). Mediator preference of practice model might also be a good indicator of which model is better; the mediator being the diagnostic instrument for assessment (McCormick & White, 2000). Additionally, mediation practice models should conform to the conceptual model of mediation guided by the ethical standards of practice and codes of conduct promulgated by courts and professional organizations (Boulle, Colatrella, & Picchioni, 2008; Della Noce, 2009); from this perspective the better practice model would be the one that most conforms with mediator ethical standards of practice and codes of conduct (Model Standards of Conduct for Mediators, 2005; Texas Mediators Credentialing Association, 2015).

Mediation Objectives

There are a multitude of mediation objectives including but not limited to the following (Alexander, 2008): access to justice; efficient settlement of disputes; conflict resolution; restoration of stability following disruption caused by a dispute (e.g. relationship rehabilitation); self-determination; financial settlement; and developing an agreement to which all parties and stakeholders to the dispute can agree. Specific mediation objectives are influenced by the parties’ expectation of the mediation process (Alexander, 2008). For example, Steve may simply expect to resolve his conflict with Bob and heal their relationship; therefore, the objective of the mediation from his perspective is reconciliation and relationship healing. Bob, on the other hand, based on advice of counsel is expecting justice and settlement of the dispute; therefore, from Bob’s perspective, the objective of the mediation is access to justice and settlement.

With a few possible exceptions, both evaluative and facilitative practice models can address the above list of mediation objectives. An exception being that on average a facilitative mediation takes slightly longer to conduct than an evaluative mediation; this may be important when considering the cost (e.g. attorney and mediator hourly rates) of the mediation (Alexander, 2008). Another, perhaps more significant, difference is that evaluative mediation does little to address relationship issues associated with a dispute (Alexander, 2008; Boulle, Colatrella, & Picchioni, 2008; Moore, 2014). In our example with Bob and Steve, while both methods resulted in similar monetary settlements, the facilitative mediation addressed the relationship of Bob and Steve. Given that disputes are precipitated by a crisis in the relationship it would seem prudent to address the relationship issues associated with the dispute (Moore, 2014); failure to address the relationship issues could predispose similar disputes between the parties in the future (Tim Flanagan, 2006; Wilmot & Hocker, 2001). In this regard the facilitative mediation practice model is superior to the evaluative model; facilitative mediation is better than evaluative mediation when considering all aspects of dispute that include relationships issues and the frustration of future disputes.

Mediator Preference

Evaluative mediation is a very popular practice process model and it has been estimated that approximately 62% of mediators utilize this model (Della Noce, 2009). Mediators that are also lawyer tend to prefer the evaluative model because the process involves assessments based on the law, and how a judge or jury might be inclined to rule. These concepts and method of framing the dispute are very familiar to attorneys which is why this practice model privileges the attorneys’ view of the dispute over their clients’ view of the dispute (Alexander, 2008; Della Noce, 2009). In essence evaluative mediation is a projection of the litigation process, which happens to also be contentious; however, mediation is not supposed to be contentious but an alternative form of dispute resolution- an alternative to litigation (Della Noce, 2009; Nahrstadt, 2016). It seems counter intuitive to proffer a model of mediation that is nothing but an isomorphism of litigation; from this perspective, facilitative mediation appears to be better.

Ethical Standards of Practice

Almost all promulgated ethical standards and codes of conduct for mediators require that the mediator be impartial, neutral, not provide professional advice (including legal) and respect the self-determination of the parties (Boulle, Colatrella, & Picchioni, 2008; Model Standards of Conduct for Mediators, 2005; Moore, 2014). As discussed above evaluative mediators frequently assess the positions of the parties and opine of the strength of their cases. The obvious question is can a mediator perform this function without influencing the parties ability to self-determine. Additionally, if the mediator were to make a recommendation or opine on an offer being considered by a party, would that recommendation not likely favor one party somewhat more than the other (Da Silveira, 2007). For example, in our case with Bob and Steve, if the mediator knew (from reading their agreement) that Bob was entitled to be reimbursed $15,000 by Steve for the delay in construction but Bob had failed to read the agreement, should the mediator point this out to Bob and possibly alter or frustrate settlement or remain silent. From our description of evaluative mediation, the mediator could and probably would offer an opinion should the mediator be inclined to do so. This act, however, probably does interfer with the parties’ right to self-determine. With respect to evaluative mediation, Della Noce (2009) asserts that evaluative mediation is contrary to good mediation practice as conceptualized in most ethical standards and codes of conduct for mediators. Da Silveira (2007) struggles with the techniques and methods used by evaluative mediators and rationalizes the use of these methods only under very specific and well defined conditions. Clearly, the evaluative mediation practice model tends to violate the ethical standards and codes of conduct commonly promulgated for mediators. From an ethical perspective facilitative mediation is obviously better than evaluative.

Conclusion / Discussion

This document discussed the prevalence of conflict and disputes in daily life. Most of our conflicts and disputes are easily resolved; however, sometimes we need the help of a professional. Professionals can practice conflict resolution using a number of different practice models, mediation being one of those general models. Within mediation the evaluative and facilitative practice models were selected for evaluation and comparative analysis. It was concluded that while evaluative mediation is widely used and effective with respect to settlement rate, facilitative mediation is better because in addition to providing an effective settlement rate it also has the benefit of addressing the relationship issues and needs of the disputants. Additionally, unlike evaluative mediation, facilitative mediation does not violate commonly promulgated mediator ethical standards and codes of conduct – facilitative is better. Surprised?

ENDNOTES

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