The Closer

A Mediation Newsletter July 2010

Mediation Styles: A Soft Touch or a Strong Arm
by James Rainwater

Simply put, there are two basic approaches to mediation: Facilitative and Evaluative. In purely Facilitative, the mediator acts more as a message courier and information extractor and shuttles back and forth with the parties' demands and offers. In purely Evaluative, the mediator explains to the parties the consequences of their decisions and sometimes tells the parties what to do.

In general, all mediators use some of each approach, and some will utilize nearly all of one or the other. The styles are not universally accepted by those attorneys using mediation. It is a common question I ask colleagues: Which mediation style do you prefer? Some attorneys want to be told (or to have their clients be told) what to do, while other attorneys do not wish to have their clients instructed on how to decide a matter or to be chastised by the mediator.

It is a fine line to navigate as a mediator. The mediator does not want to alienate a party, while at the same time, the mediator has to prevent the conference from becoming mired in a leadership vacuum. Some exertion is necessary, but how much? I have found that each mediation conference has its own personality, depending on all the participants. As such, each mediation demands an adjusted approach - some more hands-on and others more relaxed.

Which approach is best for you? First, have a good grasp of your client's individual style and comfort level regarding the stresses of the dispute. Second, give your mediator a summary of the case set for mediation. Last, before the mediation conference, inform your mediator of any concerns you may have about the client. These three inputs will allow the mediator to make some adjustment and fashion the most effective means to get the matter resolved. More than likely, the mediator will employ some Facilitative mediation, as well as some Evaluative mediation throughout the conference.

Rainwater Law