When I was trained as a mediator 20 years ago, I was taught the “facilitative method” of mediation, like many of you who are reading this, which emphasises the mediator as a process manager only. According to this school of mediation, facilitators should not get involved by giving their view on the outcome of the dispute – or anything else for that matter. This is in contrast to the evaluative school of mediation, in which the mediator does get involved in the substantive outcome of the dispute by giving their view on issues, such as legal merits and the point at which a case might settle.
In addition to this, even within the facilitative school of mediation, there are even more subcategories of beliefs on how mediation should or should not be conducted. These often revolve around whether the process should be conducted through joint meetings only or in a series of private meetings, or other similar process decisions. Over the years I’ve had many discussions about these different schools and which is the correct approach.
However it is my belief that the framing of our work as different schools is extremely unhelpful, as it restricts the way that mediators engage in the process, and moreover does not reflect the realities of mediation practice. The reality of mediating is that the mediator has a range of tools, techniques and methods of intervention which they can deploy during the mediation process, depending on a number of different factors such as nature of the dispute, the relationship with the parties, where they are in the mediation process itself and what is necessary in order to assist the parties toward settlement. Rather than thinking in terms of separate schools, which by their nature is restrictive ( you must do this, or mustn’t do that), it is better to think of all of these options lying on a continuum or spectrum of action, with the facilitative approaches at one end of the spectrum and the more direct evaluative approaches at the other. Of course there will be a point beyond which many mediators would not be prepared to go (e.g. giving their view on legal merits); however thinking in terms of a continuum of interventions allows the mediator to be more conscious about the tools and techniques they are using.
This belief was reinforced last week when I was delivering our mediator skills training course in Paris in partnership with the renowned French mediation training organisation IFOMENE Throughout the three days of the course, our training faculty engaged in a fascinating conversation with the participants, many of whom had previously been trained as mediators in France, about the differences of our mediation practices. The outcome of this discussion was the recognition that all approaches and techniques could be useful depending on the circumstances. Some examples of this are:
- Summarising parties opening statements: can be useful when, as often is the case in the French context, mediators and parties do not have sight of any or much in the way of case summaries or supporting documents prior to the mediation. It may be less useful when there is plenty of preparatory documentation or where the opening session is particularly fractious.
- Extending the opening joint meeting: to include some general exploration can be useful where there is a degree of common ground or an agreement that prior relationships between the parties have been good. Where such conditions don’t exist consideration could be given to moving to early private meetings more quickly.
- Choosing to operate in joint or private meeting: Again this is not an ‘either /or’ decision. Rather the mediator will convene joint and private meetings for a specific purpose based on what is happening in the mediation at any given time. The key is to do it for a conscious purpose rather than habit due to one’s training.
- Giving view on what is going on within the context of the negotiation: While all agreed that it would be inappropriate for a mediator to give their view on what legal merits (what would happen on a legal point should the mediation not settle and the case went on to trial), there was a good discussion about if, when and how a mediator could give their view on the negotiation dynamics. This includes questioning workability of a proposed offer, testing likelihood of acceptance of an offer by the other side and, in extreme cases, suggesting a financial offer or range that might bridge a final gap.
I found these discussions on different tools in our tool box and in which circumstances to deploy them refreshing and liberating. This concept is far more useful to us as mediators than the constraining talk of different schools of mediation practice. It is time we moved beyond this and concentrate on discussing the full range of tools available to us and when it is appropriate to use them.