The Mediation Process
Author | JOHN HOLLANDER |
Pages | 159-187 |
the mediation process
chapter six
The Mediation Process
about mediation that diers 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 inuence on the participants. is chapter discusses
some of the ways in which mediation oers 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
dierent 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, oering 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 conict through an exploration of their
interests and what they need to meet those interests. It’s
a dierent experience than its evaluative counterpart.
Getting to Yes: Negotiating Agreement Without Giving In
(Roger Fisher and William Ury, Houghton Miin, )
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 denitely 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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