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  • David Smith

Are All Mediators the Same? Nope.

Some Mediators find themselves uncomfortable with what is being called mediation in their own and other areas. In addition, many clients are confused about what they will get if they go to mediation. Styles of mediation vary greatly and can significantly impact the experience you may have. The three primary styles of mediation are facilitative, evaluative, and transformative.


Facilitative Mediation


In the 1960s and 1970s, there was only one type of Mediation being taught and practiced, which is now being called "Facilitative Mediation". Here, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions; validates and normalizes parties' points of view; searches for interests underneath the positions taken by parties; and assists them in finding and analyzing options for resolution.


The facilitative mediator does not make recommendations to the parties, give their own advice or opinion as to the outcome of the case, or predict what a court might do. The mediator oversees the process, while the parties are in charge of the outcome.


Facilitative mediators want to ensure that parties come to agreements based on information and understanding. They predominantly hold joint sessions with all parties present to hear each other's points of view, but often will caucus (hold separate meetings). They want the parties themselves to have the major influence on decisions made, rather than the parties’ attorneys.


Evaluative Mediation


Evaluative mediation is a process modeled on settlement conferences held by judges, and this style is far more brutal. An evaluative mediator assists the parties in resolving by pointing out the weaknesses of their cases and predicting what a judge or jury would be likely to do. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are concerned with the parties' legal rights rather than needs and interests and evaluate based on legal concepts of fairness. Evaluative mediators meet most often in separate meetings with the parties and their attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation. The evaluative mediator structures the process and directly influences the outcome of mediation.


Transformative Mediation

Transformative mediation is the newest concept of the three, named by Folger and Bush in their book “The Promise of Mediation” published in 1994. Transformative mediation is based on the values of "empowerment" of each of the parties as much as possible, and "recognition" by each of the parties of the other parties' needs, interests, values, and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other "recognition".

In some ways, the values of transformative mediation mirror those of early facilitative mediation, in its interest in empowering parties and transformation. Early facilitative mediators are fully expected to transform society with these pro-peace techniques. And they did. Modern transformative mediators want to continue that process by allowing and supporting the parties in mediation to determine the direction of their own process. In transformative mediation, the parties structure both the process and the outcome of mediation, and the mediator follows their lead.

One of the keys to a more amicable divorce is empowering of each of the parties. Both Facilitative and Transformative Mediation is in line with that goal.


Excerpts are taken from www.mediate.com.


During this COVID-19 situation, Sand Oak Divorce Solutions is here to serve you, open and fully operational. We are available to answer your divorce related financial questions, hold strategy sessions and financial mediations, and to navigate your divorce process and assist with your post-divorce transition either by phone or through our online capabilities.