Even in light of the litigious and adversarial nature of some matters nowadays, many parties are willing to engage in mediation to attempt to resolve matters or various sub-issues. I have heard from several practitioners, however, that while the mediation process allowed their clients to tell their stories through caucusing and/or facilitative discussions with the other side, the mediation did not yield any significant movement in their interests. As a result, they left the mediation table still touting their positions and had not moved closer to settlement. In fact, a few practitioners have stated that they wished the mediator was more helpful in getting their client to understand the weaknesses in their position. Well, the parties and the mediators in those situations were likely approaching the mediation from different perspectives; perhaps they were respectively viewing the process through evaluative and facilitative lenses (or some other lens).
There are several forms of mediation. For an effective mediation process, it is important for practitioners to understand each method, agree on an approach for the mediation and communicate the same to the mediator. So, what types of mediation exist? There are four widely recognized approaches, although the methods and approaches are not just limited to the following.
First, Evaluative Mediation “is generally understood to be a process which may include an assessment by the mediator of the strengths and weaknesses of the parties’ cases and a prediction of the likely outcome of the case. . . . Some parties wish to retain an evaluative mediator to help them get an objective view of their case and to prod the parties to reach a reasonable settlement based upon the merits of their case.” Although every circumstance should be evaluated differently, it is likely that parties mediating bankruptcy-related issues may be seeking more of an evaluative mediation process, because of the need to resolve such matters on a “faster track.” Further, evaluative mediators are more likely to be chosen for their subject matter expertise, which may be beneficial in the bankruptcy context. After all, under this approach it would be important for the mediator to know the difference between valuation issues, contested confirmation hearings and preference actions. Evaluative mediation, however, should not be confused with neutral evaluation, or a neutral evaluator’s approach. “Neutral evaluation is a disciplined and principled process. The neutral is chosen for knowledge and experience and listens to the arguments of both sides, researches the matter and comes up with an opinion.” An evaluative mediator, on the other hand, may or may not give an opinion and/or a proposal for settlement.
Second, Facilitative Mediation is probably the most common approach people think of when they hear the word mediation. Facilitative mediation is the process by which the mediator “helps parties think about how to work through difficulties and toward a resolution of their own making [if so desired] without outside pressure.” Under this approach, “[t]he 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. The mediator is in charge of the process, while the parties are in charge of the outcome.”
Third, Transformative Mediation, in some respects, appears to be a hybrid of the common approaches. The distinguishing factor is that the ultimate goal is for the parties to leave the mediation with an improved relationship. “The parties . . . work with the mediator to determine the appropriate resolution process for their situation. . . . Recognition is generally considered to be an important part of transformative mediation, so that each party can understand how the other one defines the problem.” This approach is often used to resolve workplace conflicts, because the conflicting parties typically continue to work together. Transformative mediation, however, could easily be extended to bankruptcy cases where parties such as lenders and debtors, debtors and creditor-suppliers and debtors and landlords need to maintain a continuing relationship during and after the bankruptcy case is closed.
Fourth, “Narrative Mediation builds on the storytelling metaphor. It is both an approach and a methodology, providing mediators with a way of incorporating stories into the very fabric of mediation.” This allows parties to move from positions of “victimized and protagonist” and “victimizer and antagonist,” to a shared story without pinning the responsibility for the conflict on any one side. “This leaves conflict parties with a previously ‘closed’ interpretation (their story) open to new possibilities and interpretations.” The ultimate goal is that through storytelling, the parties move toward a “new climate of openness [leading] to the genesis of a new account [story] and mutually satisfying interpretations and outcomes.”
While there are several approaches to mediation, the takeaway here is that the parties should work together to agree on a method, communicate that approach to the mediator and re-evaluate where necessary to change methods given the particulars of their individualized situations and any changed dynamics over time. Mediators should also be clear to communicate their methods to the parties (whether it be one method or a combination of methods and approaches), encourage the parties to agree on the approach and understand what methods work best for specialized issues, matters and areas.
What method, if any, do you think best suits bankruptcy-related disputes?
Sources:
Zena Zumeta, Styles of Mediation: Facilitative, Evaluative and Transformative Mediation, http://learn2mediate.com/resources/nafcm.php.
Diane Cohen, Evaluative Mediation, http://www.mediate.com/articles/CohenDbl20110321.cfm (Mar. 2011).
What Facilitative Mediation Has to Offer, http://dianecohenmediation.com/site/what-facilitative-mediation-has-to-offer/ (Jan. 2010) (originally published at mediate.com).
Alison Faria, What is Transformative Mediation?, http://www.wisegeek.com/what-is-transformative-mediation.htm.
Toran Hansen, The Narrative Approach to Mediation, http://www.mediate.com/articles/hansenT.cfm (Sept. 2003).
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