Join the KCBA ADR Section and WSBA ADR Section for an exciting Mediation Week event next Tuesday, October 17, 2017, from 4 p.m. – 6:30 p.m., at the King County Bar Association. Free CLE Ethics credits available!
…that since its establishment in 1981, WAMS has provided pro bono mediation services to clients represented by pro bono attorneys? Over the years, WAMS mediators have volunteered their time to resolve cases involving churches and other non-profit organizations, indigent clients with civil rights claims, criminal plea bargains with victim compensation and small business disputes – just to name a few. WAMS mediators also mediate on a pro bono basis for clients referred through the Volunteer Attorneys for Persons with Aids (VAPWA) and Neighborhood Legal Clinics (NLC) programs.
By: Diane McGaha | Attorney Director
& Tamara Roberts | Mediation Director
WAMS Case Administrators are often asked by prospective clients and new staff members to distinguish one mediator’s “style” from another – and it has nothing to do with anyone’s choice of tie, watch or footwear. Particularly when a client is unfamiliar with one or more mediators under consideration, it can be helpful to know which mediator style might work best for a particular client or case.
It’s fairly well agreed within the “old school” ADR community that there are three main style categories used to describe how mediators may approach a given case: facilitative, evaluative and transformative. Of course, it’s important to understand from the outset that an experienced and well-trained mediator can’t be categorized by any single, universal definition. But it’s also undeniable that the dynamics of each case can be greatly influenced by the style employed by a mediator in his/her approach to resolution, whether by choice or direction. If a specific style/approach is specifically needed or requested by the parties to a prospective mediation, it’s helpful to share that request with the WAMS Case Administrator at the time of scheduling.
The first mediator style category is facilitative, which is generally regarded as the most common and traditional style of mediating. A facilitative mediator helps parties explore options for settlement by listening to all sides and helping them analyze the issues involved. The facilitative mediator does not typically offer specific settlement recommendations or voice an opinion about possible outcomes. He does, however, facilitate resolution by helping the parties come to an agreement based on information exchanges and compromise. When asked about mediators within WAMS who might be considered to be facilitative in their approaches to any given case, the usual WAMS response is that most mediators are trained to be facilitative. It’s the basic training model used by WAMS and most mediation training organizations for many years.
An evaluative mediator is generally known and expected to offer opinions and make specific recommendations about settlement values and outcomes should the case go to trial. The evaluative mediator is often retained precisely because the parties want an outside, neutral opinion about various aspects of a case that are pivotal and hotly contested. While both the evaluative and facilitative mediator will point out the strengths and weaknesses of the case to help parties understand the costs and risks of going to trial, the evaluative mediator will be much more directive and opinionated in her approach. Most retired judges who work as mediators are evaluative in style, as the authoritative judicial role is not easily
left behind. Obviously, there is an inherent risk that the evaluative mediator will express an opinion that isn’t received well by one or more mediation participants, even if the mediator is specifically asked and expected to opine. As soon as an evaluative mediator expresses an opinion, the risk is that the mediation will be ended by a party who doesn’t like the opinion. The use of an evaluative mediator should be by specific request, with a clear understanding by all involved of the expectations and obligations of the mediator and parties to be involved in an evaluative mediation. Some mediators are more comfortable with the evaluative mediation style than others, so be sure to convey any request for an evaluative mediator to the WAMS Case Administrator at the start of the mediator selection process – avoid asking the mediator during the mediation to be evaluative, as he may decline if not forewarned.
The last category of mediator style is transformative, wherein the objective is to transform the relationships between the parties through improved communication and guided interaction. The transformative mediator helps parties appreciate each other’s viewpoints and works to empower them to deal with future conflict in a healthier, more productive manner. Transformative mediators tend to handle many cases involving relationships between the parties beyond the dispute(s) at issue. Whether the relationships pertain to a family-owned business, partnership or organizational conflict, the transformative mediator lets the parties control the process. With guidance throughout to help each party see the other’s perspective and establish a framework for future conflict avoidance, transformative mediation goes beyond the objective of ending a specific conflict to bring some semblance of reconciliation to the relationships involved.
The reality is that WAMS mediators have been extensively trained to employ all three mediation styles when the case calls for creativity and adaptability. No WAMS mediator is interested in being typecast with a particular style that might preclude her consideration for a case. It is, however, undeniable that there are stylistic differences between mediators that can assist in the neutral selection process. At the end of the day, WAMS strives to match the mediator to the case in order to maximize the opportunity of settlement. In one recent case, the plaintiff related well to Tom Harris because of their shared interest in eclectic watches. In another case, Margo Keller’s golfing hobby landed her an appointment to mediate for an unknown client. The reality is that choosing a mediator is certainly not an exact science – but knowing more about mediator styles and what might best suit a particular client or case can only be beneficial. One size definitely does not fit all!