Elements of Legal Conflict Resolution – Mediation

Introduction:

Mediation
has been described as an informal and flexible private dispute resolution process, that can occur in a variety of contexts.¹ The dispute resolution process assists parties to a dispute, to identify issues in dispute, formulate options, examine alternative solutions and strive to reach agreement.²
All this is done with the assistance of a neutral third party with no advisory or determinative role.³

Mediation
models:

There are four main models of mediation that can be utilised in different jurisdictions and dispute contexts.⁵

Settlement mediation

Also referred to as compromise mediation, where parties are encouraged to compromise towards a central point of the parties original position, in order to bring about a settlement of a dispute.⁶
Parties are guided towards settlement by a high-status mediator utilising procedural interventions to move parties towards a compromise position.⁷ Whilst, this form of mediation is culturally accepted, relatively straightforward to do, and is easily understood by the parties, it has been criticised for the manipulation of parties needs and interests.⁸ This type of mediation is often employed in areas of
insurance, personal injury , commercial and industrial disputes.⁹

Transformative mediation

Also referred to as therapeutic mediation, where the mediator encourages parties to deal with underlying causes of their problems with a view to enhancing the restorative nature of their relationship as the basis for settlement.¹⁰ This is achieved through recognition and empowerment, utilising
professional therapeutic techniques, employed by mediators specialising in counselling, psychology and/or social work. Generally decisions are made subsequent to dealing with the underlying
relationship issues.¹¹ This type of mediation can often bring about a resolution of the relationship rather than simply settle the dispute and is utilised primarily in matrimonial, family disputes or where continuing relationships exist such as a workplace.¹² The ‘blurring of the lines’ between counsellor and mediator may be problematic, additionally the process can be protracted and may not end in a resolution.¹³

Evaluative mediation

Also referred to as advisory, managerial or normative mediation, here, the mediator may have little or no experience in mediation processes, however, has substantive expertise in the disputed area. The mediator actively encourages parties to reach settlement focused on their rights, entitlements, Industry standards and norms within the anticipated range of court remedies.¹⁴ The mediator utilising his or her expert knowledge and experience advises and provides information to the parties with the objective to
persuade parties to settle.¹⁵ This form of mediation has a high level of intervention by the mediator and has been likened to quasi-arbitral in style, with outcomes within the scope of that of a court.¹⁶,
opponents of this model contend it obscures the line between mediation and arbitration, and fails to educate parties in negotiation skills for the future.¹⁷

Facilitative mediation

In the facilitative model parties are encouraged to negotiate centered on their interests and needs, rather than their strict legal rights. It has been suggested by Professor Boulle, that problem-solving
models are the dominant models of mediation, with interest focused mediation delivering a higher likelihood for innovative solutions to disputes fashioned on the parties unique circumstances, as opposed to a purely legal interpretation.¹⁸ The role of the mediator in the facilitated model, is to assist the parties to make independent decisions and assess their own individual situations. Facilitative mediators in contrast to evaluative model mediators are highly skilled in areas of mediation processes and techniques, however, may have little or no knowledge in subject in dispute.¹⁹

Facilitative mediation is founded on two fundamental principles, one of neutrality, whereby a neutral third party endeavours to reach a solution, through communication, promoting an understanding of the

issues and focusing on the parties interests and needs in order to seek a creative, uniquely structured solution.²⁰ Secondly, facilitative mediation actively encourages self-determination of the parties, in order to empower the parties to reach unique and individual resolutions to their disputes.²¹

The concept of neutrality goes to the core to the facilitative model, once a mediator is perceived to be biased the entire process is undermined.²² Boulle, contends the facilitative model attempts to uphold the neutrality of the mediator,²³ conceding that neutrality can be considered ‘the most pervasive and
misleading myth about mediation’.²⁴ It has been suggested that the facilitative mediation model is based on process, focusing on the way a decision is made, rather than on
the substance of the outcome,²⁵ delivering unique and creative problem solutions aimed at a win-win
outcome to a dispute.²⁶ Based on these assumptions, it could be argued that the concept of
neutrality becomes credible if the mediator’s focus is on process only, as opposed to the content or outcome of the dispute.²⁷ Facilitated mediation Is by far the most cited mediation methodology in

literature,²⁸ and is suited to a broad range of disputes including community, family, organisational, environmental and partnership disputes.²⁹ 

Importance of an intake:

An intake occurs at the beginning of each phase of the mediation, Condliffe describes the intake phase of mediation as vital to a successful outcome.³⁰ The intake process involves the parties, separately, providing information to the mediator and gives the parties the opportunity to say, in their own words, how they view the dispute, and the issues that are important to them. The mediator will explain to the parties the process involved and overview of the mediator’s role.³¹ It would be important the intake

process include an explanation as to the mediator’s roles, background of the mediators. It should include an explanation that the mediator is unable to provide legal advice to either party, and
they are there as impartial facilitators of the mediation.it should be explained to the parties the final resolution is in the hands of the individuals, due to the self-determination process of this form
of mediation. Parties should be advised it is an impartial process and mediators are neutral third parties. The guidelines, ‘ground rules’ and procedures should be explained focusing on mutual
respect in terms of allowing each party to express themselves and not be interrupted by the other party, along with a suggestion to remove negative and blame focused language from the mediation.. Confirmation should be sought that each party is ready to enter into mediation and have the authority to settle. At the start of each session, both joint and individual the mediators should outline the entire process and what to expect and what the mediators expect from the parties.

Agenda:

The agenda was achieved following an explanation and overview of what has transpired so far in the mediation. The main points of concern derived from each parties opening statements were highlighted by the mediator and written on a white board, confirmation was sought from each party that the points were reflective of their concerns. Agenda setting is important as it creates focus and structure to the

mediation. This is achieved by the mediator identifying the agenda topics and requesting each party communicate any information and provide their personal perspective on each agenda topic.³²

Interests versus Rights:

Mediators encourage the parties to a dispute to analyse their underlying interests, which represent the needs motivating any held position in a dispute, this has the result of defining the problem.³⁹
Thereby, by the analysis of each parties’ interests, solutions to a problem may take on a more creative and individual approach. By focusing on these interests, parties who are at an impasse may
uncover innovative solutions to their problem, and may also discover congruent interests.⁴⁰

References