By Jonathan Mertz
Amongst the many Alternative Dispute Resolution (ADR) mechanisms that have emerged as alternatives to the traditional court forum, mediation is a unique one: It is the only ADR that maintains party-autonomy and empowers the disputing parties to develop a solution that is specific to their issue. Unlike a judge or arbiter, a mediator only guides the conversation that the parties have with each other but does issue a ruling.
The guiding mantra amongst mediators is that they own the process, while the parties own the outcome. However, notwithstanding the assurance of complete substantive autonomy, many parties may wonder what exactly this mediation process will look like, or worry if the process is right for them. Answering that question may be a bit tricky as there is no ‘one-size-fits-all’ approach; rather, there are three prominent mediation models:
- Transformative Mediation
The transformative model is the newest type of mediation and the one offered by the Osgoode Mediation Clinic. Transformation mediation recognizes that the relationship between two parties extends beyond their current dispute. The process is designed to give parties an opportunity to explore each other’s needs in order to enable them to develop the right solution that will transform their dynamic. To that effect, the mediator first seeks to empower the disputing individuals by learning their side of the issue and exploring underlying interests and concerns. The mediator then shifts the process and asks guided questions to allow the parties to talk to another, not to develop any solutions yet, but in order to learn each other’s truths. It is only then, after the parties have a profound understanding of the other’s needs and interests, that the mediator steers the dialogue towards a resolution which is developed solely by the parties themselves. The mediator will remain neutral during the entire process and not share their opinion or pass judgment.
- Facilitative Mediation
As its name suggests, facilitative mediation is principally about enabling disputing parties to negotiate with another to end their conflict on their own terms without the involvement of lawyers. In this model, the mediator structures the process in such a way to create an atmosphere where the parties are able to gain a sincere understanding of the other’s interest and perspective in order to come to a lasting solution. To that effect, the mediator will keep the conversation between the parties going, by asking them questions about both the nature and specifics of their conflict as well as the framework agreement that crystalizes over the course of the mediation. This process allows parties to reflect on their underlying needs and to ensure that the solution they are working towards is workable for them. While in facilitative mediation the parties spend most of the time in the same room, the mediator will regularly take the parties aside individually to ensure that they feel heard and are comfortable with the process. At no point will the mediator offer legal advice or offer their own opinion on the legal merits of the parties’ claims.
- Evaluative Mediation
The goal of the evaluative model is to provide the parties with a better understanding of the legal merits of their case, while still providing a forum where they have sufficient autonomy to create a solution to their conflict. Unlike the other two models, evaluative mediation involves an active mediator who weighs legal arguments and provides commentary on the specific positions of the parties and the framework solution that the parties come to develop. In evaluative mediation, the parties will not come face to face; rather, the mediator will meet with the parties individually and function as a ‘go-between’ to communicate the other parties’ position. Due to the legalistic focus of evaluative mediations, parties are encouraged to bring counsel to the mediation.
While these three models of mediation are the most common, the list is by no means exhaustive. As mediation is growing more popular, mediators will continue innovate their processes in order to meet the specific needs of disputing parties. While some models will be subject-specific others may continue to be of general application. One thing, however, will remain the same: disputing parties will continue to have complete autonomy to resolve the dispute on their own terms.