As a form of alternative dispute resolution (ADR), mediation is becoming increasingly prevalent across many jurisdictions throughout the world. For example, Singapore's Ministry of Law brought forward a Mediation Bill late in 2016, which aims to support international commercial mediation by enacting stay of court proceedings provisions as well as strengthening the enforceability of mediated settlements. There are a number of factors behind the growing popularity of mediation: increasing pressure on budgets for in-house legal teams means that litigation is no longer automatically the go-to route to settlement. Court systems which are over capacity have led to more jurisdictions mandating mediation as part of the dispute resolution process. And of course, as this blog has written about previously, mediation can allow for cheaper and quicker resolution of a dispute, particularly where there is an on-going commercial relationship.
Mediation’s success has focused minds on the best way to conduct the process to reach an acceptable outcome for all parties.
Different approaches to mediation
There are a number of different approaches, each with their own merits and advocates. A "rights-based" approach focuses on the legal rights of the parties and attempts to achieve a resolution which meets the relevant legal criteria of the dispute in a manner that is consistent with resolutions achieved in a traditional court setting – a broadly evaluative approach. An "interest-based" approach focuses on the underlying interests of the parties and encourages a broader range of solutions to the dispute which address these interests, business or otherwise, as well as their legal interests. This is the facilitative approach and may produce outcomes that look very different to anything which comes from a court.
A useful way of classifying these different mediation styles is to employ the classic thinking of mediator orientations first advanced by Leonard Riskin in a 1996 article published in the Harvard Negotiation Law Review.
He uses a four-quadrant grid to categorise and discuss mediation styles, from facilitative to evaluative. Along the horizontal axis, he plots the different approaches to defining the problem to be resolved, from a narrow definition of the problem which focuses on the strengths, weaknesses and likely outcomes of litigation, to a broad definition of the problem which considers increasingly broad arrays of interests. The vertical axis focuses on the mediator's style with, at one end of the continuum, techniques that facilitate negotiation and, at the other end, strategies employed to evaluate the matter at hand based on a particular set of standards. Riskin describes these facilitative and evaluative orientations, making it clear which approach he favours:
"The mediator who evaluates assumes that the participants want and need her to provide some guidance as to the appropriate grounds for settlement - based on law, industry practice or technology - and that she is qualified to give such guidance by virtue of her training, experience, and objectivity.
"The mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Accordingly, the parties can create better solutions than any the mediator might create. Thus, the facilitative mediator assumes that his principal mission is to clarify and to enhance communication between the parties in order to help them decide what to do."
Faciltative vs. evaluative mediation
Is one approach inherently better than the other?
Supporters say that facilitative mediation empowers parties, and helps them to take responsibility for the resolution of their dispute. Those on the other side of the argument say that facilitative mediation takes too long, with a higher likelihood that the process will end without agreement. They contend that outcomes can be contrary to standards of fairness and that mediators in these approaches cannot protect the weaker party.
Those who favour evaluative mediation say that clients want an answer if they can't reach agreement, and they want to know that their answer is fair. They point to the increasing number of clients choosing evaluative mediation to show that the market supports this approach more than others. Evaluative mediation's popularity is due to the closed minds of lawyers who choose this style because they are familiar with the process, say detractors. Some say that the clients would not choose evaluative mediation if given enough information to make a choice and worry that the evaluative mediator may come to the wrong decision.
In the real world, of course, most mediators operate somewhere between a facilitative and evaluative approach. As jurisdictions around the world increasingly mandate mediation in areas like employment and small claims we are likely to see a rise in the evaluative approach from less sophisticated clients who want a definite answer. Conversely, for large global commercial organisations with complex shared interests the facilitative approach may be more compelling.