Mediation Models: Comparing Evaluative, Facilitative, Transformative

This report provides a comparative analysis of three primary mediation models: evaluative, facilitative, and transformative. The evaluative model, often used in problem-solving, involves the mediator assessing each party's position and offering a solution, which can be faster but may not consider relationship aspects or adhere to ethical standards. Facilitative mediation, another problem-solving approach, focuses on helping parties find their own solutions by identifying their underlying interests, encouraging collaboration, and maintaining relationships. Transformative mediation, the newest model, emphasizes empowering parties and recognizing each other's needs, giving them control over the process and outcome, which can lead to more cathartic and lasting positive effects but can also be time-consuming. The report concludes that the facilitative mediation model presents a balanced approach, allowing parties to address both emotional and factual aspects of the dispute while ensuring a solution is reached within a reasonable timeframe. The report also includes a bibliography of sources used in the analysis.

A Comparison of Mediation Models
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A Comparison of Mediation Models
Introduction
Conflict is a common phenomenon in everyday life and where a conflict leads to a
relationship crisis, a dispute is formed.1 Mediation is a creative problem-solving mechanism
through which disputes are resolved by a process that aims to satisfactorily address the needs
and alleviate the suffering of those involved.2 Mediators are the professionals who facilitate
this process of dispute resolution. According to Spangler,3mediation practice models can be
classified into two categories, problem-solving or relationship building. These two categories
are further divided to include evaluative and facilitative mediation methods under problem-
solving models while relationship building models include transformational mediation and
narrative mediation.4 The following discourse recognises these as the main practice models
an aims to compare their strengths and weaknesses with the objective of identifying the most
useful in practice.
Discussion
Under evaluative or judicial mediation, one of the problem-solving models, the mediator
usually has a degree of knowledge or expertise on the subject matter in dispute. The process
involves the mediator assessing each party’s position against the other and providing a legal
or technical opinion of the best possible solution.5Essentially, the mediator will highlight the
weaknesses present in each party’s arguments and provide a prediction of a possible litigation
1 Christopher W Moore, The Mediation Process (4th edn, Jossey-Bass 2014) 7; Gary Clayton, ‘Mediation
Models: What is Best?’ (Mediate.com, January 2018) https://www.mediate.com/articles/claytong1.cfm accessed
28 October 2018.
2 Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: The Transformative Approach to
Conflict (John Wiley & Sons 2005) 18.
3 Brad Spangler, ‘Settlement, Resolution, Management and Transformation: An Explanation of Terms’ (Beyond
Intractability, April 2017) https://www.beyondintractability.org/essay/meaning_resolution accessed 28 Octtober
2018.
4Laurence Boulle and Nadja Marie Alexander, Mediation: Skills and Techniques( 2nd edn, LexisNexis
Butterworths 2012).
5Maxine Adams, ‘Wonder Woman vs Superman: Who Would Make A Better Mediator?’ [2013] 68(4) Dispute
Resolution Journal 61

outcome.6As such, the mediator has controlling power over the direction of the process and
its possible outcome. The strengths of this model are that it presents an expert position and
outlines the possible outcome of litigation to disputing parties which enables them to
effectively assess their options. It is also faster and less costly as compared to litigation.
There are however demerits arising from the degree of control the mediator has over the
outcome of the case; the assessment provides a factual solution which does not take into
account the relationship aspect of the dispute and as such could easily lead to future disputes.
Further, the interference of the mediator by directing the outcome of negotiations is contrary
to good mediation practice embodied in ethical standards and codes of conduct.7
The second main problem-solving mediation practice model, which also happens to be the
oldest, is facilitative mediation. Like evaluative mediation, the process is navigated by the
mediator. However, unlike the evaluative model, the mediator’s aim is to aid the parties in
arriving at their own solution. The mediator aids the parties to discover their underlying
interests as opposed to merely outlining their legal position and rights.8 The bargaining
method is integrative and collaboration is encouraged among the parties. As such, this model
encourages an assessment of interests which touches in the emotional aspect of the dispute
and as such encourages maintenance of the relationship which curbs future disputes arising
from the same core issues. The challenge, however, lies in the likelihood of a lengthier
process than the evaluative model. Additionally, as there isa greater concern in party interests
over rights, there is a risk of power imbalance in the overall outcome.
Identified by Bush and Folger, the transformative model is the newest mediation model
which is informed by an appreciation of the empowerment of the disputing parties as well as
recognition by both of the other’s interests and needs. These elements of transformative
6 Zena Zumeta, ‘Styles of Mediation: Facilitative, Evaluative and Transformative Mediation’ (Mediate.com,
September 2000) https://www.mediate.com/articles/zumeta.cfm accessed 28 October 2000.
7 Dorothy J Della Noce, ‘Evaluative mediation: In search of practice competencies’ [2009] 27(2) Conflict
Resolution Quarterly 193
8Maxine Adams, ‘Wonder Woman vs Superman: Who Would Make A Better Mediator?’ [2013] 68(4) Dispute
Resolution Journal 61

mediation are derived from the values of facilitative mediation embodied by early mediators.
The difference, however, lies in the level of control disputing parties have over the process;
they control both the process and the outcome. As the parties have primary control, the root
cause of the rising disputes is likely to be addressed as there is no limit on negotiation;
emotional aspects can be brought forth. It is therefore likely to be more cathartic and have
longer lasting positive effects on the relationship. The challenge, however, rises in the lack of
focus which makes it more time consuming and as such costlier than the other two methods.
Further, critics have also found it to be too idealistic. These concerns make it unsuitable for
business or court matters which require expedient and final solutions.
Conclusion
According to Clayton, the most useful or effective model is that which achieves the desired
objective, is mediator approved and conforms to the prescribed ethical standards and codes of
conduct with respect to mediation. Although evaluative mediation is the most adopted
practice model, concerns have been raised as to its conformity with ethical standards and
codes of conduct due to its over-involvement in the mediation process and outcome. The
facilitative and transformative models adopt less control; however, the transformative model
can be time-consuming and costly as it is exclusively client or party driven. As such, the
facilitative mediation model presents a balanced option as it allows parties the opportunity to
address both emotional and factual aspects of the dispute and the mediator role in controlling
the process ensures a solution is arrived at within a reasonable time-frame. Based on these
deductions it is evident that the facilitative mediation model is conclusively the most useful
mediation model.
Bibliography

Books
Boulle L and Alexander NM, Mediation: Skills and Techniques (2nd edn, LexisNexis
Butterworths 2012)
Bush RAB and Folger JP, The Promise of Mediation: The Transformative Approach to
Conflict (John Wiley & Sons 2005)
Moore C W, The Mediation Process (4th edn, Jossey-Bass 2014)
Journals
Adams M, ‘Wonder Woman vs Superman: Who Would Make A Better Mediator?’ [2013]
68(4) Dispute Resolution Journal 61
Della Noce DJ, ‘Evaluative mediation: In search of practice competencies’ [2009] 27(2)
Conflict Resolution Quarterly 193
Articles
Clayton G, ‘Mediation Models: What is Best?’ (Mediate.com, January 2018)
https://www.mediate.com/articles/claytong1.cfm accessed 28 October 2018
Spangler B, ‘Settlement, Resolution, Management and Transformation: An Explanation of
Terms’ (Beyond Intractability, April 2017)
https://www.beyondintractability.org/essay/meaning_resolution accessed 28 October 2018.
Zumeta Z, ‘Styles of Mediation: Facilitative, Evaluative and Transformative Mediation’
(Mediate.com, September 2000) https://www.mediate.com/articles/zumeta.cfmaccessed 28
October 2000