The beauty of mediation lies in empowering those in disputes to come to a resolution on their own. However, the question remains as to whether the participants truly work to resolve the issues, or does the mediator subtly evaluate the case to get the discussion going.
What sets mediation apart from litigation or arbitration is the importance of self-determination in resolving disputes. Instead of giving their judgement, mediators empower those involved in disputes to create their own solution. By facilitating the discussion between parties, mediators enable them to achieve recognition shifts and understand each other’s perspectives and interests. This allows them to formulate mutually-satisfying outcomes. And when they do, participants mostly feel good because they are not coerced by anyone in deciding the resolution of their conflict.
The question is, do participants in mediation truly solve their disputes on their own?
The Great Debate In Mediation: Facilitative vs. Evaluative Approach
When it comes to resolving disputes, mediators employ various styles to enable parties to reach a settlement. Some mediators purely facilitate the communication between both sides, so that they can come to a resolution on their own. On the other hand, some mediators offer advice on legal rights, settlement and industry standards to help those involved come to a decision. However, this evaluative approach on mediation is often scrutinised, since the mediator’s input or opinion can encroach on the self-determination of participants. Moreover, it compromises the mediator’s neutrality. The presence of evaluation in mediation has always been questioned, such that the term “evaluative mediation” has been deemed an irony.
But then, is the process of mediation totally free from evaluation?
To address this debate, Leonard Riskin came up with the Riskin Grid in 1996 to characterise all the approaches that are used in mediation. This has become known as the facilitative-evaluative spectrum, and aims to acknowledge the use of evaluation in mediation. Since disputes are often complex in nature, the spectrum aims to encourage the use of various styles in mediation, as long as they do not influence the autonomy or the self-determination of all those involved. Even proponents of the evaluative approach in mediation state that they do not aim to intrude on the autonomy of the participants. They offer their input or opinion on the case to ensure that everyone is well-informed to make the proper decision.
Furthermore, it has been pointed out that evaluation is not totally absent in mediation, even if the facilitative approach is used. When it comes to asking questions or re-framing the statements from both sides, the mediator uses evaluation. In highlighting certain aspects of the case, the mediator also uses his own judgment to determine the unimportant details, and allow participants to focus on the real issue. Evaluation is also present when the mediator calls attention to a certain aspect of a settlement offer, or when he encourages the other side to respond to it. Simply put, the process of mediation is not without some form of evaluation, as mediators also use their judgment to facilitate the discussion.
Flexibility: The Answer To The Facilitative-Evaluative Divide
Given that some form of evaluation is present in mediation, the best answer to the facilitative-evaluative debate is simply to move freely along the spectrum, as long as the autonomy of participants is preserved. Whatever approach or orientation mediators use, they should keep in mind that this should lead the participants toward consensual decision-making. That is, the mediator should empower both sides to formulate the resolution on their own terms whether through a facilitative or an evaluative approach; or a combination of both. Even if Riskin created the grid, he encourages mediators to go beyond it and use the approach that they think is best in addressing the participants’ needs.
For those that remain concerned about evaluation affecting the outcomes in mediation, California’s Rules of Conduct could suggest a development – or at least discussion – for Australia as well. These rules require mediators to inform potential clients of their orientation in resolving conflict. If they need to change their mediation approach in the course of resolving the dispute, these guidelines implore them to inform both parties. And, in the spirit of self-determination, the participants have the choice whether they would like to continue or select another mediator that will enable them reach a mutually-satisfying outcome.