Mediation as a Form of Dispute Resolution (2 of 4)

Are there different styles of mediation?

The simple answer to this question is yes! Mediation styles can be viewed on a continuum that varies from a "facilitative" style to a "directive" style. Directive mediator give advice and are more concerned with the outcome. Facilitative mediators give information and educate but do not give advice and are more concerned with the process. There are ethical dilemmas for those mediators whose style is directive as both the AFM and SPIDR standards require that the parties negotiate their own settlement and that the mediator be both neutral and impartial.

The issue of the ethical requirements that a mediator not suggest a solution or direct the parties is the topic of regular discussion in the professional associations. Robert D. Benjamin, who is the immediate past president of AFM, its former Ethical Chairperson, an international mediation trainer and regular presenter at both the AFM and SPIDR conventions has stated that "Some mediators have intentionally or unwittingly adopted a style of defacto arbitration under the guise of mediation. They see their role as one of expert or problem-solver and direct the parties to an outcome they think is the most appropriate, reasonable, or practically obtainable." " . . . If the mediator uses such an approach without the parties' express pre-agreement, then this may well be the basis for a finding of a breach of the responsibility to ensure informed consent." ³

Each mediator has her own style. That style is affected by the same factors that affect one's interpersonal communication, problem-solving and negotiation style. Those variables are gender; personality, age/development stage (tolerance of ambiguity and comfort with conflict). cultural, racial, ethnic, religious background and value orientation; profession of origin (education/training); context of the dispute - family or business/commercial.

The U.S. Postal Service has recently implemented its newly formed REDRESS Mediation program. REDRESS is an acronym for Resolve Employment Disputes Reach Equitable Solutions Swiftly. The Postal Service has chosen to utilize a style of mediation from a "transformative" framework. This method, which is explained by Joseph P. Folgers and R.Baruch Bush in their book "The Promise of Mediation" defines a mediators role as that of only a facilitator with ___________________________.⁴

Is mediation better than other forms of dispute resolution?

The parties' reasons for high satisfaction with mediation are:

• Mediation enabled them to deal with the issues they themselves felt important.
• Mediation allowed them to present their views fully and gave them a sense of being heard.
• Mediation helped them to understand each other.

Parties report high satisfaction with mediation, for the above reasons, even in cases where no settlement was reached, and even when they "did worse" in mediation than they might have done in court.

Parties' favorable attitudes toward mediation stem largely from how the process works, especially:

• The greater degree of participation in decision-making; and
• The fuller opportunity to express themselves and communicate their views.

Studies of mediation programs show that when the kind of mediation offered lacks the features mentioned, satisfaction levels are very low. ⁵

Who can mediate?

In most states there are no certification requirements. Anyone can mediate. However some states have begun to establish guidelines or qualification for mediators to whom courts refer and the professional associations such as AFM require a certain number of hours of training and practical experience before one can be called a practitioner member.⁶ Most professional mediators realize the value of training and at minimum attend a 40 hour basic mediation training program along with one to three day courses that are customized to address issues that are encountered while mediating disputes in such fields as healthcare, the workplace and in divorce and custody.

What disputes can be mediated?

Mediation can be utilized for most disputes. The question is not whether the issue can be mediated but whether the parties to the dispute are willing to work through their own feelings to reach a mutually acceptable resolution to the problem. Any dispute generates feelings that range from discomfort to bitterness and animosity. Many people search for what they believe to be the "quick fix" to these negative feelings i.e. litigation. Mediation forces the parties to face each other and to communicate with each other ‚ a sometimes difficult and uncomfortable process but one which ultimately results in agreements that are detailed and customized and, according to statistics, complied with by the parties themselves.

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