There is a broad spectrum in the way that different mediators mediate, ranging from a careful avoidance of influencing the outcome to pressuring the parties or offering a view on the merits of the issues. In my view, the disagreement among mediators about how to mediate can be resolved by focusing on some distinctions among types of cases — rather than among the preferences of mediators — and coming to an understanding about what is appropriate in these different contexts. Mediators should not mediate in the way that they prefer, but instead, should mediate in a way that meets the goals of the parties. And in my view, again, the goals of the parties are not necessarily that hard to ascertain. For example, if we were to divide cases up into several categories: litigated cases, divorce cases, non-litigated business cases, and interpersonal cases (community, workplace, marital, relationship, non-divorce family, neighbor, friends, etc.), we might see a trend.
In virtually all the interpersonal cases, it is probably true that the individuals would like to fashion a resolution that is personal to them, developed by them and very specific to their unique perspectives. This calls for a facilitative, non-directive, highly neutral approach which is intensely respectful of the parties’ perspectives, and which encourages a fostering of clear communication, insightful framing of the issues, and a party-based approach to resolution.
In divorce cases, some parties may want a very facilitative approach and some may want the neutral to make suggestions based upon experience and expertise (if the neutral has these). In these cases, perhaps it would be best for the mediator to ascertain at the outset which of these two approaches the parties want, or whether they want a third approach of some kind.
In litigated cases, it is likely that some parties will want a resolution of the matter that puts the matter to rest quickly and gives them some of the financial result that they are seeking. In other cases, they may want a non-monetary remedy from the party (which the court may not be able to fashion), either in conjunction with, or in lieu of, a monetary remedy. This can be developed through facilitative mediation. Again, the mediator should ascertain from the parties which of these they are looking for, and whether they also want to consider the use of a neutral evaluator if appropriate to the situation.
In non-litigated business cases, parties are more likely to want a solution that is tailored to the situation. It may involve personal elements or it may involve easily ascertained objective elements. If the latter is the case, the parties may desire suggestions from an experienced and expert neutral. Or they may want to fashion it themselves. If there are personal elements that need to be resolved and the parties want to fashion their own approach and resolution, then a highly facilitative process is appropriate.
If mediators should mediate in a style that meets the goals of the parties, then how do we address the idea that parties do not know the potential of mediation and that they are only accustomed to forums in which there is a judge deciding the issue?
First, we must always respect the opinions, views, perspectives and intelligence of the parties. The final say is up to them. And if they are to have a final say, that means that they need to know the options. That means that the mediator should always have a discussion at the outset — either explaining the mediator’s approach and asking the parties if that appeals to them, or asking the parties what they are looking for and then deciding whether he or she can provide it.
Second, the mediator can take the opportunity to explain to the parties how the approach the mediator could take might be helpful to the parties. The parties may or may not agree, and that is up to them. So, the question is: how can the mediator explain facilitative mediation in a way that captures the imagination of the parties to see the potential when it is outside their own experience? That is the challenge, and despite the challenge, we must never skip the steps of ascertaining the parties’ goals and conveying the mediator’s approach(s). Because once we do that, we have abdicated our roles as respecters of the principle of self-determination and have imposed our own opinions onto the parties. And that is not mediation.