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Thrashing, Bashing, or Hashing?

July 29, 2013 at 2:54 PM

Efforts to classify and evaluate mediation types have a long and fraught history.

Around 20 years ago, a US law professor by the name of James Alfini put mediators into one of three categories. He said thrashers revel in tearing apart the parties' cases. They then browbeat the parties to adopt more realistic positions. Bashers on the other hand, focus on the parties' opening offers. They then pressure the parties to shift those offers to a mutually acceptable point somewhere in between. Hashers use a combination of less forceful approaches to encourage the parties to reach agreement.

Just a few years later, another US law professor, Len Riskin, devised a somewhat more realistic and sophisticated classification. He did so at the invitation of a Kansas law firm wanting the means to more skilfully choose mediators. Professor Riskin's classification comprised two categories, namely evaluative and facilitative, each of which was then broken down into two further categories, namely narrow and broad.

Evaluative mediation involves the mediator expressing views on the merits of the parties' arguments, in the expectation that settlement will reflect those views. Facilitative mediation involves the mediator assisting the parties to reach settlement as they see fit, without attempting to influence what that settlement should be. A narrow approach to mediation is one in which the mediator focuses on settling the immediate dispute at hand, and views discussion which is not so directed to be superfluous. A broad approach to mediation is one in which the mediator allows the parties to canvass issues and interests which go beyond the immediate dispute at hand.

The debate

Riskin's classification gave rise to much debate, if not acrimony, as to the relative merits of these approaches to mediation. The debate got more complicated as new approaches to mediation emerged. For example, transformative mediation gave precedence to the learning and empowerment of the parties, and narrative mediation utilised storytelling and metaphor to assist parties to reframe their disputes. Pragmatists were pitted against purists, realists against idealists. There was debate as to whether mediation is a noble pursuit or simply a means to an end. Furthermore, the debate reflected the assumption implicit in the question posed in the title to this article, namely that there must be one preferred way to undertake mediation.

No one way is best

It is now widely accepted that no one type of mediation suits all cases, nor is intrinsically better than another. In any event, each type of mediation has endless variations, and in any particular mediation, a variety of approaches may be called for.

Choosing a mediator

In choosing a mediator, parties should have regard to the overall type of mediation which will best serve the parties. Three useful questions might be asked. What has prevented the parties from reaching agreement up to now? What will now assist the parties to reach agreement? What mediator has the necessary skills to address these issues? The answers to these questions may be less than obvious. Those answering them will need to be perceptive and objective.

Take, for example, a shareholder dispute in a small privately owned company. It may be that genuine uncertainty or disagreement about shareholder rights has prevented agreement. Such a scenario lends itself to a narrow, evaluative style of mediation, because the parties will be best assisted by clarification as to their respective rights. On the other hand, it may be that worry and fear on the part of the shareholders about their future economic security has prevented agreement. Such a scenario lends itself to a broad, facilitative style of mediation, which will enable the parties to devise creative solutions to their concerns.

If only it was that easy

But, unfortunately, life is rarely this simple. It turns out that, in the first scenario, matters have become complicated by awkward interpersonal issues. It is not such a neatly contained commercial matter after all. And it turns out that one of the parties in the other scenario has quite unrealistic expectations as to legal entitlement. Devising creative solutions is not going to be enough. Therefore, in the first scenario, the evaluative mediator is going to need the ability to tackle delicate personal issues if settlement is to be achieved, and in the second scenario, the facilitative mediator will need at times to be evaluative to counter unrealistic expectations.

The problem is that the obstacles to settlement may not always be apparent until mediation has commenced. What the parties need is a savvy mediator who will recognise the dynamics at play, and have the ability to address them.

Answers

Therefore, the question posed in the title can only be answered by reference to the unique circumstances of each case. Further, it must be answered at both the macro and micro levels. Whatever overall approach may be chosen for the mediation, within the mediation, other approaches may be called for.

The qualities of a good mediator

This is why good mediators are veritable chameleons, having the ability to utilise the right approach and then to change it as circumstances demand. They have the knowledge, skills, judgement, and adaptability to use the right approach at the right time in the right case. These qualities can only be derived from thorough mediation training and experience.

 

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Category: Negotiation