Types of Mediation
By Harinder S. Gahir
Lawyer, Mediator and Arbitrator
Former Chairperson CCP Review Tribunals
Former Vice Chair, Licence Appeal Tribunal, Ontario
Although not set in stone, there are three types of meditation processes that have gained prominence over the past 30 years. Below is a high-level summary of Evaluative, Interest-Based/Facilitative and Transformative Mediation Strategies.
A. Evaluative Mediation
Zumeta explains that “Evaluative mediation is a process like settlement conferences held by judges. An evaluative mediator assists the parties in reaching a resolution by pointing out the weaknesses of their cases, and predicting what a judge or jury would be likely to do. An evaluative mediator makes recommendations to the parties as to the outcome of the issues. Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness”1.
B. Interest Based/Facilitative Mediation
Ellis and Anderson explain interest-based mediation as, “In the interest-based model formulated by Bennett and Hermann (1996), mediators attempt to reconcile interests through facilitating principled negotiation. They also attempt to reconcile positions by facilitating positional bargaining to narrow the parties’ bargaining range and settle the issues before the parties reach their bottom lines”2.
Macfarlane explains “In one of the clearest summaries of facilitative mediation, Zumeta (2000) described it as an approach in which 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 the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case.”3
C. Transformative Mediation
Ellis and Anderson explain transformative mediation as a process in which a mediator facilitates moral change in disputants through empowerment and recognition. Bush and Folger (1994) created the transformative mediation model as an alternative to the interest-based mediator’s conceptions of conflict4.
Bush and Folger explain that transformative mediators concentrate on empowering parties to define issues and decide settlement terms for themselves, and on helping parties to better understand one another’s perspectives. In keeping this focus, transformative mediators help parties recognize and exploit the opportunities for balancing the strength of self and connection to others.5 The transformative mediation is meaningful even if the parties do not reach a settlement. The parties gain a new perception about their conflict that may lead to better communication between the parties.
1 Zena Zumeta http://www.mediate.com/articles/zumeta.cfm accessed on April 11, 2017
2 Desmond Ellis and Dawn Anderson, Conflict Resolution: Introductory Text, Edmond Montgomery Publication Limited, 2005, at 103
3 Julie MacFarlane, John Manwaring, Ellen Zweibel, Gemma Smyth, Arthur Pearlstein, Dispute Resolution Readings and Case Studies Third Edition, Edmond Montgomery Publications 2011, at 265
4 Desmond Ellis and Dawn Anderson, Conflict Resolution: Introductory Text, Edmond Montgomery Publication Limited, 2005, at 98
5 Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation, The Transformative Approach to Conflict, Jossey-Bass A Wiley Imprint 2005, at 35