Mediation: Does one size fit all?
One of the reasons why parties can be reluctant to mediate is that they are put off by the idea of participating in a very formal structure. For some people, the thought of this can be as stressful as going to court. The other significant worry for parties is whether or not the mediation will be successful.
My experience as a mediator suggests that a flexible approach can be of huge benefit. There are a variety of models of mediation but most mediators are familiar with either the civil model (which starts with an open meeting and proceeds by shuttle diplomacy) or the community/workplace model, which commences with the mediator meeting the parties separately and then working gradually towards a joint meeting. This model is more usual where the aim of mediation is to repair a broken relationship rather than resolve a legal dispute.
Starting with an open meeting won't work if, for example, directors involved in a bitter boardroom dispute are not prepared to sit in the same room as each other. Conversely it might become clear during the course of a shuttle mediation that aspects of the relationship might be repaired, (for example where parties at an employment tribunal start to talk about reinstatement) or that the parties are going to benefit from listening to each other –one of them may be prepared to offer an apology for actions that have taken place.
An experienced mediator will need to be prepared to switch track in the course of a mediation rather than stick to a rigid model, to meet the needs of the parties on a particular day. The traditional model of mediation used in the UK is a facilitative model, during which the mediator will express no view on the merits of a claim. However, in the USA evaluative mediation is used more widely. It is interesting to note that feedback on the use of judicial mediation in the employment tribunal suggested that parties would sometimes like the Judge who is mediating to take a more directional or evaluative approach.
While some mediators undergo specific training in evaluative mediation, it is quite possible for a mediator to use a more evaluative technique within a facilitative mediation. This is usually only possible where the parties have sought some guidance, but it can be invaluable in terms of breaking deadlock and moving people forward. It is also important to remember that there are now a variety of dispute resolution options available to parties that might be combined to good benefits. For example, some dispute resolution practitioners are now using a combined form of arbitration and mediation (sometimes referred to as Arb-Med or Med-Arb). This means that mediation can be tried, but if the case does not settle an arbitration can be carried out so that the parties can be guaranteed an outcome at the end of the day and have not ‘wasted their time’ by opting for ADR. Civil procedure and employment tribunal rules will now provide an option for parties to elect for early neutral evaluation of the merits of their case with a view to promoting settlement. Such evaluation by a judge could be followed by judicial or other mediation, once the prospects and the issues in the claim have become clearer. Finally of course all that may be needed is for a trained practitioner to facilitate an open and honest discussion in a safe and controlled environment. The facilitator may use a variety of mediation techniques but without using the formal mediation structure. The question to ask, wherever parties are considering how to settle their differences, is not necessarily ‘what type of ADR process shall we go for?’ but ‘what do these parties need to happen and what is the best way of trying to achieve a settlement? The range of dispute resolution techniques now available and the different strands of mediation that have developed may be combined effectively to give the parties the best possible option of reaching a resolution.