Models Of Mediation Practice

Mediation is generally recognized as a process in which parties in conflict (often on their own, but sometimes represented by separate attorneys) attempt to negotiate a settlement of their dispute with the assistance of a neutral third party, the mediator (who may or may not be an attorney, but who does not represent either party).

There are various “models of practice” within the field of mediation. With the “facilitative model,” the mediator is “in charge of the process,” but the parties “retain responsibility for the product.” The facilitative mediator refrains from providing advice, recommendations, or information about likely legal outcomes; instead, the mediator’s focus is on facilitating and guiding the parties in their own conflict resolution. In the “evaluative model” of mediation, the mediator provides the parties with his or her substantive knowledge and experience, and focuses on evaluating and settling the dispute. The “transformative model” of mediation involves a mediator who “works with the parties to help them change the quality of their conflict interaction from negative and destructive to positive and constructive, as they explore and discuss issues and possibilities for resolution.” In transformative mediation, the focus is on transforming the parties’ communications and interactions; a settlement of the conflict is a byproduct of that transformation.

Different mediators employ different models of mediation, or combinations of models. However, as a general proposition,

The ultimate authority in mediation belongs to the parties. With the help of the mediator, the parties may consider a comprehensive mix of individual needs, interests, and whatever else they deem relevant, irrespective of rules of evidence or legal precedent. Unlike the adjudicatory process, the emphasis is not on who is right and who is wrong but on establishing a workable resolution that best meets the needs of the participants.

(Folberg, J., Milne, A. and Salem, P., Divorce and Family Mediation: Models, Techniques and Applications, (Guilford Press, NY 2004))