The Mediation Process

the mediation process
chapter six
The Mediation Process
   about mediation that diers from other
negotiations? Compare mediation to a sport, such as ten-
nis or soccer. Mediation has its own rules, formats, cul-
ture, and expert practitioners. ese characteristics have
their inuence on the participants. is chapter discusses
some of the ways in which mediation oers a solution
to a problem, and how lawyers can use these ways to the
advantage of their clients.
  
Choosing a Mediator: Facilitative and
Evaluative Approaches
Joy noonan
   dierent approaches; ap-
proaches that are often as unique as the people who call
themselves mediators. Typically though, a mediator’s style
will trend toward one of two prominent directions: facili-
tative or evaluative. It’s important that you, as the lawyer,
   
know this, and what it means for your needs on any par-
ticular le. For example, in court-mandated mediation, I
may start o facilitative, but I know that I have been hired
by parties for an approach that is gently evaluative once
we get out of the main room. Let me explain:
The Approaches
   to focus more on the
merits of the case, and the likelihood that one side will
or will not prevail at trial. is style is what is more often
used in court-mandated mediation and other pre-trial
settlement attempts. e mediator keeps the parties sep-
arate for the most part, shuttling back and forth with one
proposal at a time, oering advice based on the merits of
the case or defence.
Facilitative mediation is also known as interest-based
or principled mediation. In this, mediators help the par-
ties resolve their conict through an exploration of their
interests and what they need to meet those interests. It’s
a dierent experience than its evaluative counterpart.
Getting to Yes: Negotiating Agreement Without Giving In
(Roger Fisher and William Ury, Houghton Miin, )
is still the classic, gold-star, interest-based mediation
model. When sitting together, parties often need to be
heard on issues that have a lot to do with feelings, with
relationships, with their perceptions of fairness, and so
on, and these needs tend to be more in focus in a facilita-
tive approach.
You will denitely see an overlap between these two
styles in experienced mediators (as noted above, I bor-
row from the interest-based approach quite a lot) but the

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