Two parties may have a dispute, but that does not mean that they are headed to court. Often used as an alternative to litigation, mediation is one of the most common and efficient forms of alternative dispute resolution. Many like it because it avoids the expense, stress and time involved in going to court.
The mediation format ideally sidesteps a contentious courtroom fight by collaboratively working towards an equitable solution that both sides can live with. It is also more private since the courts maintain case information in public records.
The common formats of mediation
People assume that mediators always facilitate negotiations between the parties, but there are a variety of mediation formats. According to the Harvard Law School, the seven most common forms are:
- Facilitative mediation: This is the classic form of mediation where a trained mediator attempts to facilitate negotiations between the two sides. Rather than impose decisions or make recommendations, the mediator lets the two sides voluntarily find a resolution.
- Evaluative mediation: The opposite of facilitative mediation, the mediator will make recommendations and express opinions based on the legal merits of each side’s arguments.
- Court-mandated mediation: A judge may have the two parties go into mediation and address certain issues, leaving the court to focus on the more contentious parts of the case, thus speeding up the legal process.
- Transformative mediation: This format asks the two sides to look at the interests of the other party, which advocates say can help the two sides work toward constructive change in the working relationship.
- Arb-Med: This blend of arbitration and mediation features a neutral arbitrator who listens to the two sides’ evidence and testimony, and then renders a sealed decision. The two sides then try to mediate a solution on their own, unsealing the arbitration decision if there is an impasse during mediation.
- Med-Arb: The parties will often agree in writing to the terms of the process and its outcome as binding. If the mediation does not work, the process turns to arbitration to render the decision.
- E-mediation: This increasingly popular method avoids disputants sitting in a room negotiating their solution, which is particularly suitable for parties who are not located near each other.
Each case’s needs are unique
It is often beneficial to discuss case goals and the dispute’s history with an experienced alternative dispute resolution neutral to determine the best resolution strategy. Individual mediators and lawyers have their own approaches, so it is best if the clients and lawyers discuss a desired approach with the prospective mediator. Most effective mediators are able to tailor their approach to what is best suited for each particular case, rather than using a “one size fits all” approach.