In mediation, the parties work with a neutral third party mediator who helps them reach agreement. The mediator may meet jointly with the parties and also privately in individual caucus sessions. A mediator cannot impose a binding decision on the disputants. If a settlement is reached, it is reduced to writing and is binding as a contract and may be entered into as a judicial order. The mediation process may run the spectrum from facilitative to evaluative, depending on the needs of the parties, their abilities to negotiate independently of the mediator and the likelihood of an impasse.
In mediation, no one single approach is appropriate for every case. Many conflicts require various different interventions over the course of the mediation of a dispute. Effective mediators must use different styles of intervention based on the needs of the parties, as disputants often need more than process assistance from a mediator. The best mediators provide advice about substance and have qualities that are not simply about process, including:
In facilitative mediation, the mediator assists the disputants to communicate more effectively but will not engage in rigorous analysis or evaluation of the substance and merits of the dispute. Parties will be encouraged to develop their own settlement options. By comparison, evaluative mediators are likely to be more aggressive in seeking concessions. An evaluative mediator may engage in pro-active "reality testing" of the weaknesses of party positions in private caucuses and may propose settlement alternatives. Reality testing gives parties the ability to make a more objective analysis of their position. The mediator holds caucus sessions where he asks the parties to respond to an opponent's claim or defense. In doing so, the mediator tests the positions of the parties to assess how close or far apart they are from a realistic view of their cases. The mediator opens the parties' eyes to important aspects and facts they may have overlooked in the case. Thus, reality testing provides a more realistic view and enhances the possibility of a settlement. Possible discrepancies in understanding between parties and their own counsel can be uncovered through reality testing as well. In addition, an evaluative mediator may be called upon by the parties to render a non-binding opinion of the merits of the dispute.
At Press, Dozier & Hamelburg, we fit our style of mediation to the needs of the parties involved. Mediations may begin as purely facilitative but move along the spectrum to include more evaluative techniques as the negotiation proceeds and as needed by the disputants. This style of mediation has been called Analytical Mediation.
Mediating or facilitating complex, large group processes involving parties with diverse and sometimes conflicting concerns requires sensitivity to the needs and negotiating styles of the parties. Initially, a more reserved style may be appropriate as parties have the opportunity to express themselves and interact with other interests. If communication becomes difficult because of emotion or the inability to understand others, the neutral may need to manage the dialogue to clarify the messages being exchanged. Various tools can be used to encourage parties to consider different potential options and viewpoints.
Our approach depends on the case and the format requested by the parties, but generally we are merits-based mediators. When requested, and where the parties and the process would be best served, we will assist on a more evaluative level. We believe that persistence, humility, and good humor are all good characteristics of a facilitator/mediator of complex, multi-interest disputes.
In complex cases such as we generally mediate, parties expect the mediator to be familiar with the issues under discussion and for the mediator to be actively engaged in negotiations. Parties also expect a deep understanding of how governments and large bureaucracies work, how policies are developed and implemented, how decisions are made within governments, private companies, tribes and volunteer organizations, and the pressures and factors that influence how parties weigh options.
ADR Attorney Dan Dozier has worked for a local elected official - the Mayor of the City of Detroit, as chief house counsel of a federal agency - the Federal Mediation and Conciliation Service, and as chief of Congressional Liaison for a major cabinet department - the (then) Department of Health, Education and Welfare. Many of the cases he has mediated have involved high profile, politically sensitive legal and technically challenging disputes between governments and among governments and private parties. Such cases require knowledge about organizational cultures and how 'political' and other influences can affect parties' views and interests.