Selecting the Best Mediator

In his book “How to Select the Best Mediator, ” Brandon Peters says your success at mediation depends on three element: (1) Approach, (2) Style, and (3) Background. Peters says “different cases require different approaches to mediation.” Peters then goes on to the describe the three types of mediation approaches.

Facilitative Mediation

This type of mediation can be very challenging and your choice of mediator can easily determine the conference outcome for you. The facilitator generally works to identify the best interest of both parties and tries to come up with the best outcome, which usually has little to do with a party’s legal rights or financial interests. Facilitative mediation is most often used when the facilitator sees the need to focus on the clients’ needs, interests, values, goals, and fears. It is also used when emotions are running high between the parties, such as between a couple hoping for a divorce. Since this approach is more about the client and less about the law, lawyers generally feel uncomfortable with this approach. The success of facilitative mediation depends on the mediator’s ability to influence the behavior of the parties at that particular time. This method is not the preferred method of mediation for most lawyers, unless it is a family law dispute.

Evaluative Mediation

This method is most often used by retired judges and is also known as “soft-arbitration.” Unlike facilitative mediators, evaluative mediators do not focus on concerns or feelings of parties. Their sole focus is on providing the most appropriate settlement terms while considering the legal, economic, and cultural circumstances of both parties. Contract disputes, complex business torts, and other commercial controversies are responsive to evaluative meditation. Since trial lawyers and retired judges usually mediate in this process, the results can be very effective and successful in the long-term.

Transformative Mediation

This method of mediation aims at changing, or transforming, the perspectives of one of the parties involved. Since transformative mediation is based on a model of interactive crisis, it involves addressing the parties’ underlying conflicts before turning to the dispute at hand.

Peters ends his book by saying you should be very careful in selecting a mediator and try to select one with the skills required to resolve your case. While finding a highly-skilled mediator can be difficult, they can be necessary for more complex cases. A highly-skilled mediator, according to Peters, will at least have the following skills:

  • Flexible style, ranging between moderately-and highly-involved
  • Fluid use of the eclectic approach, moving seamlessly from one technique to another to keep the mediation process going forward
  • Highly-refined interpersonal and communication skills
  • Understanding and successfully applying Game Theory to understand each party’s perceptions of every other participant

Someone looking at mediation should strongly consider the three methods of mediation Peters provided and find the best mediator for their individual case.

Source referenced: Huffington Post


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Rausch Mediation & Arbitration Services
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