Why all mediation is not created equal and why that matters to you
Mediation is where a neutral third person assists people to reach agreement over an issue in dispute. The aims and procedures used by mediators vary.
At its core mediation should be;
- consent based;
There are two main styles of mediation. They are ‘case settlement’ mediation and ‘interest based’ mediation.
Case settlement mediation
In a case settlement style mediation, the main actors are usually the lawyers. The parties may speak for themselves, but their participation is limited and usually choreographed. The focus of the discussion is usually narrow and based on legal rights; what is the Court going to do? It does not go into broader issues. The negotiation is usually positional and competitive. Most often the mediator is directive, they tell the parties what they think the answer is.
Case settlement mediation is popular in a commercial environment, where issues boil down to dollar figures and relatively superficial personal relationships.
Case settlement mediation is also popular in the family law environment and is commonly ordered by the court once proceedings have commenced, with many barristers and ex judges using their considerable expertise to provide directive solutions to complex problems.
Interest-based mediation looks at issues beyond what a Court would look at. It focuses on the parties’ interests; that is, what is important to them. It is about supporting cooperative negotiations over the issues in dispute.
The mediator is usually non-directive to any outcomes. They assist the parties to clarify the issues in dispute, ascertain needs and recognise the other party’s goals and aspirations. The mediator attempts to build trust and help the parties to share information, brainstorm options for settlement and explore potential solutions. The outcome is not limited to remedies that the court would provide and allows for creative problem solving.
Interest-based mediation is relationship driven; it works on the premise that the parties will usually have to interact with each other after an agreement has been reached. It seeks to empower the parties to work on their dispute resolution capacity, engender empathy and understanding and facilitate a better working relationship in the future.
Which is best for me?
Most mediators will usually sit somewhere along the continuum between case settlement and interest-based styles, sometimes even changing their role in a mediation to suit the situation.
Neither process is better or worse than the other. It is more about understanding which is better for your circumstance. When engaging a mediator ask them where they fit along the continuum and whether they can tailor their process to give you the mediation you want. No matter how wonderfully skilled a mediator is, if they are engaged in a process that does not suit your situation or aims, the agreements reached may not be what you had hoped for.