In our January Newsletter we outlined the names that are generally attributed to the different traditional methods or styles of mediation. Most people think of the “Evaluative” and the “Facilitative” methods and some have studied the “Transformative” approach. We advocate “Concord” mediation as embodying aspects of the best practices of all of the other methods – always in the context of the particular and individual situation presented by the client and by reference to what the process should do for people and what they desire and expect from it.
We are trying to bring greater clarity about mediation and to the whole field of mediation. We do not allow ourselves to become hung-up on names and phrases that have arisen in the lexicon of mediation. Concord Mediation, as we practice it, allows and encapsulates whatever arises in the particular circumstances of a mediation. As stated our philosophy and standards have evolved from in-depth study and from practices that have worked in the past and that we believe to be most effective. It is all about what the mediation process should and can do for people and how it can best be done by reference to practices that best fit the client’s situation and their expectations.
Mediators tend to feel strongly about these three styles of mediation. Generally speaking organizations that train and accredit mediators and set standards for mediation – from national and state mediation organizations, and legislative and judicial mediation programs – are silent on this issue of method. Some prohibit evaluation, and a few require it. For example, the Mediation Council of Illinois – Best Interests of Children states: “While the mediator has a duty to be impartial, the mediator also has a responsibility to promote the best interests of the children and other persons who are unable to give voluntary, informed consent …….. If the mediator believes that any proposed agreement does not protect the best interests of the children, the mediator has a duty to inform the couple of his or her belief and its basis.” Mediate Ireland is very conscious of such a duty in its mediation of family law matters and other situations that involve children and people with disabilities.
Another example of these strong feelings is found in a review of Florida’s professional standards for mediators. The committee got stuck on the issue of evaluation in mediation. The then rules were “a mediator should not offer information that a mediator is not qualified to provide” and “a mediator should not offer an opinion as to how the court in which the case has been filed will resolve the dispute”. The committee came out with two options for a new standard on this issue: Option One would prohibit giving opinions except to point out possible outcomes of the case; Option Two states that the mediator could provide information and advice the mediator is qualified to provide, as long as the mediator does not violate mediator impartiality or the self-determination of the parties. After receiving comments on these two options, both were withdrawn and the committee tried again. The comments were many and strong. Eventually, the new rule was written to reflect Option Two.
This has been addressed in the Draft Mediation & Conciliation Bill, 2010 in that it provides a differentiation between mediation and conciliation and processes whereunder a more evaluative approach can be adopted by the mediator when and if the parties agree that the mediator should act as conciliator. The approach of Mediate Ireland is to adopt the Concord approach and if that evolves to a situation in which the parties agree to the mediator acting in a more evaluative way, as conciliator, then such agreement can be adopted.
A concern of people thinking of embarking on a mediation process to resolve their dispute, and of their solicitors and barristers, is that they do not know what they may get when they end up in a mediation setting. Some people feel that mediators ought to disclose prior to clients appearing in their offices, or at least prior to their committing to mediation, which style or styles they use. Other mediators want the flexibility to decide which approach to use once they understand the needs of the particular case. Mediate Ireland consider this flexibility to be of the utmost importance in that the evolution of any particular mediation will in itself dictate the process that will be appropriate. The establishment of a good relationship between the mediator, the person in dispute and their representatives, under Concord principles will serve as its own guide as to which of the established processes emerges as most appropriate in the particular case.
We believe these styles are guideposts rather than distinct differences in the evolution of any given mediation – from least interventionist to most interventionist. Most mediators use some facilitative and some evaluative techniques, based on individual skills, experience and predilections and the needs of a particular case. We have found that the more “boxed in” a mediation becomes – like where perceived legal information or positions are taken too seriously and where the whole process is perceived as being either evaluative or facilitative – the less importance is given to possible resolutions coming from the parties themselves. We focus strongly on what the parties say and how they say it; what their interests are as opposed to the stated issue; what their real needs are – so that possible resolutions coming from them are always highlighted. Such resolution coming from the parties themselves are always much more valuable, deeper and provide the basis of a more lasting solution. Concord Mediation as used by Mediate Ireland mixes the various techniques, rather than focusing on any one of them, so that the resolution of the dispute can evolve in its own time and way with facilitative, evaluative and transformative being interwoven in the process as it develops.
If you have a client or know someone who may benefit from the Mediation Services that we provide please contact, Mark Small on 087-2268394 to discuss your requirements or organize a mediation.
For more information on our mediation services CLICK HERE
Mediation Advocacy Training
Mediate Ireland provides training programs to anybody involved in the Mediation Process. One of our most popular programs is “An introduction to Mediation Advocacy”, which is specifically for professionals who represent their clients at a mediation. This is a afternoon program (6 CPD hrs are available) which runs regularly throughout the year.
For more information on our training programs CLICK HERE