Useful Mediation Styles: Facilitative and Evaluative, 1020 RIBJ, RIBJ, 69 RI Bar J., No. 2, Pg. 13

PositionVol. 69 2 Pg. 13

Useful Mediation Styles: Facilitative and Evaluative

Vol. 69 No. 2 Pg. 13

Rhode Island Bar Journal

October, 2020

September, 2020

Let’s start at the end. The dispute is resolved and the parties have an agreement. All present hope to have achieved the goal: resolution of the dispute reduced to a written agreement that will be durable and lasting. Data show that agreements entered into voluntarily have higher rates of compliance than those imposed by a third party (e.g. judge, arbitrator). How did we arrive at a voluntary sustainable agreement?

First, who is the mediator and why should parties trust him/her with this process? Did s/he come recommended by their lawyer? As the result of a joint process of elimination? By an algorithm that matched subject matter, geography, and mediation member professional? Because s/he was/is a respected trial lawyer? Maybe. But equally likely is even if parties start mediation somewhat warily of either the mediator, the process, or both, most respond favorably and productively when given an opportunity to be fully heard in a private confidential forum which prioritizes their determination of everything that is important to the dispute, including the timeframe. With nothing characterized as “irrelevant” (as might be according to the Rules of Evidence), each side gets to tell its story. The mediator managing that process must be able to elicit these stories devoting sufficient time and attention to the aspects deemed most important by the parties.

It is critically important to manage this process respectfully and efficiently. Listening without interruption until a party has finished speaking is advised, which is sometimes followed by the mediator’s careful rephrasing for clarity and/or summarization if the offering has been lengthy, always seeking party assent to any mediator characterization. A mediator who is facilitating generally allows parties to lead and responds with curiosity and interest – not judgment. In so doing s/he honors the history and travel of the dispute. This stage may be the most important opportunity to build trust, which is essential in order to proceed with integrity to subsequent phases of mediation.

It frequently does not proceed as you imagine it might at the outset. Human beings are complex. The mediator may be introducing new language that s/he sees has potential to gain agreement from both sides (akin to refining an agreed statement of facts in real time in litigation). Parties on the same side may not be in agreement. Or. they may take two steps forward and one step back. It is work that requires critical listening skills, an ability to pivot, and a great deal of patience. The mediator is managing the energy in the room working towards a time in the process when both sides believe they have had a chance to...

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