Facilitative or Evaluative
Med - Arb Hybrid
Although there are no hard and fast rules, it is common for a significant number of caucuses to occur before another meeting with all participants present. Depending on the tenor of the mediation, the demeanor of the parties and a number of other considerations, there may be several joint sessions with everyone present between individual caucuses, or none at all. If attorneys are participating, the mediator might find it productive at times to meet with them separately, or with an individual attorney. Most often, the potential for achieving a successful settlement will be apparent after a few caucuses and perhaps a joint session or two. At that point the real work begins, and all participants should be prepared to commit themselves to exploring and exhausting all possibilities to creatively fashion a resolution that is acceptable to all concerned.
The TRANSFORMATIVE MODEL is undoubtedly the purest form of facilitative mediation, where the role of the mediator is completely devoted to assisting communication between the parties so that they alone determine the outcome. A mediator sufficiently skilled in the transformative method can have a high degree of success, not just in the percentage of final settlements achieved, but in the subjective sense of success that the parties experience – something that is all too often overlooked in the other mediation formats. In short, the transformative approach to mediation treats disputes as manifestations of human conflict resulting from perceived social and communicative disparities between the parties. In other words, the conflict is something derived from human interaction, where there is a destabilization of the way the parties experience themselves and each other. As a result, their interaction is more vulnerable and at the same time more self-centered than what existed before the conflict. The negative nature of these dynamics then feed into each other throughout the process of interaction, creating a vicious cycle that increases each party's sense of weakness and self-absorption and ultimately degenerates into a mutually destructive, alienating, and dehumanizing relationship.
As the mediator provides specific types of feedback throughout the process, the parties utilize their inherent capacity to change the interactions to effect an “empowerment shift” (change in their perceptions of personal strength or self-confidence) and a “recognition shift” (change in their perceptions of openness and responsiveness to the other). As a result, the positive nature of these dynamics create a new type of interaction that is constructive, connecting, and humanizing. When that transformation of the interaction itself occurs, the natural proclivity for the parties is to move toward a resolution of the dispute, thus enhancing the potential for settlement. The mediator's goal is to help the parties identify opportunities for empowerment and recognition shifts during in the course of their conversation, to choose whether and how to respond to those opportunities, and thus to change their interaction from destructive to constructive.
The MED-ARB PROCESS can utilize any mediation format or hybrid format and there are no procedural differences in how the mediation component is conducted. If at some point it becomes apparent that further mediated discussions would be futile, the mediator then acts as an arbitrator and makes a binding decision that the parties have contractually agreed to accept. While Med-Arb does ensure from the outset that a resolution to the dispute will be achieved in a quick and cost-effective manner one way or another, it is not simply a matter of combining a typical mediation with a normal arbitration for a variety of reasons. First and foremost, the potential for any successful mediation is greatly enhanced when the parties and their counsel are able to communicate fully and candidly with the mediator about all aspects of the matter, including the respective strengths and weaknesses of each side. The confidential nature of those communications, particularly with regard to weaknesses, is what allows the mediator to get a complete and accurate picture of all aspects of the dispute independently and objectively. Without it, the mediator’s ability to facilitate a resolution is drastically diminished. The major downside to Med-Arb, of course, is that the parties and their counsel know that the mediator could end up being an arbitrator, and it is typically better for a party to not disclose the weaknesses of their own position to one that is wearing the arbitrator hat, especially if the weakness may not be known to the other side. Although settlements are most often viewed by the parties as the lesser of two evils, the failure to provide complete and candid information to the mediator will significantly inhibit his or her ability to act as a true facilitator, and thus the greater of the two evils is much more likely to prevail (a decision being made by someone other than the parties themselves).
There are two basic types of mediation formats, FACILITATIVE and EVALUATIVE, and each can be conducted using various sub-formats. In a facilitative mediation, the mediator’s role is to help the parties communicate with each other by enhancing and clarifying the messages they are attempting to convey without any significant external input by the mediator regarding the bases of the parties’ respective positions. An evaluative mediation is one where the mediator takes an active role guiding the process by providing creative input, feedback and an assessment of positions based on an exploration of applicable law, industry practice, economic factors, etc. Although these two labels can be useful in determining a general format, it is rare that mediations are purely facilitative regardless of how they may start off.
Mediations conducted using the CAUCUS METHOD are the most common. Typically, before the mediation occurs the parties will submit their respective position statements to the mediator but not to the other side. All participants meet together with the mediator first, who explains the process and any ground rules. After each side presents a brief opening statement, the parties (along with their attorneys if present) are separated into different rooms. The mediator then conducts separate conferences (caucuses) with the parties to gather additional information, clarify and refine positions, explore the factual and legal bases for the positions, address any discrepancies, elicit proposals to resolve the issues, provide feedback and offer suggested topics for discussion as requested and appropriate.
The major downside to Med-Arb, of course, is that the parties and their counsel know that the mediator could end up being an arbitrator, and it is typically better for a party to not disclose the weaknesses of their own position to one that is wearing the arbitrator hat, especially if the weakness may not be known to the other side. Although settlements are most often viewed by the parties as the lesser of two evils, the failure to provide complete and candid information to the mediator will significantly inhibit his or her ability to act as a true facilitator, and thus the greater of the two evils is much more likely to prevail (a decision being made by someone other than the parties themselves). Further, it is impossible for a mediator to be transformed into a typical arbitrator at the moment when settlement attempts become futile, and while it may be true that the person acting as mediator ultimately renders a binding decision when a Med-Arb format is utilized, no aspect of the failed mediation leading up to it can be said to resemble an arbitration proceeding. All that said, there may be times when Med-Arb is an appropriate method to resolve a dispute if each party has a high level of confidence in the mediator as being fair-minded and committed to objectivity.
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