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All The Above – Does It Matter?

Posted on June 25, 2014 by Steve Shapiro

all-the-aboveIn mediation parlance the “All the Above” question has been debated like the chicken and the egg – except most mediators would say that humanity has been mediating even before the chicken.  The question pertains to the manner and fashion that some mediators adhere to a particular style of practice – almost in a fundamentalist way.  Why should consumers of mediation care?

In an ABA Commercial Mediation Survey taken a number of years ago with Fortune 200 Corporate Counsel, there was pretty clear consensus that the parties should play a role in the design and selecting the style of mediation required to resolve the matter.  What are the key types of mediator styles?

Transformative – there is some agreement that a mediator who practices in this sphere is not going to direct the parties towards settlement.  The mediator is going to ask questions and allow the parties interests, intentions, and needs to move them in the direction they need to go – if that does not include a settlement, then so be it.  It is believed that the party’s autonomy and interdependence is of greater import than a deal in the moment.  This method or style has traditionally been used in many family and employment disputes where there are palpable emotions on the table and the mediator recognizes that she is not going to be fixing those issues any time soon.  Rather by empowering the parties to assume responsibility and recognizing their concerns, issues, needs so that everyone is hearing them, then maybe there is a chance for a transformative shift to take place in the relationship.

Facilitative – this is probably a well-known mediator style where the neutral focuses the parties on a particular course. For example, most 40 hour basic mediator training courses focus on the larger concepts of Interests, Options, and Settlement.  A good facilitative mediator is keenly attuned to drawing out the interests, re-framing them in ways that all parties hear the concerns, and in so doing opens up a larger conversation around a vision and possibility for settlement.  A good facilitative mediator has a strong and direct manner to keep the mediation process moving forward, will likely be prepared to shuttle between parties, and bring the parties back together.

It is the question of whether the mediator should move into an evaluative role that sets an Analytical or Evaluative Mediator a part from the Transformative or Facilitative described above.  In many jurisdictions it is believed that once a mediator steps into the evaluative role they are no longer neutral and are serving in the role of counsel.  This would certainly be problematic for the myriad of non-attorney mediators that are practicing across the US today, but also poses some concern for attorney-mediators.

The Analytic mediator is probably, in my experience, what parties involved in complex business settlement negotiations and mediation require.  The ABA survey mentioned above bears this fact out. It is important to emphasize that the Analytical Mediator does not forfeit any of the processes discussed above.  I propound an all the above approach that usually builds into an Analytic approach if the parties are interested and want a non-binding opinion.

I have spent a fair amount of time in some early writings that suggest ways to avoid having to move into an analytic or evaluative stage.  However, in a party self -determined matter, if counsel and the parties request an evaluation or analysis of the dispute, I am prepared to give them one.  I will only go there after exploring all other possibilities for settlement.

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