Caldwell & Kearns, P.C.
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Selecting a neutral mediator: some things to consider, P.2

Last time, we began considering some factors worth considering when selecting a neutral mediator. As we noted, mediators all have different in terms of their education and training, experience, background, personality, and personal biases they work to overcome. All these factors should be considered when making a selection of a neutral mediator that is going to carry out the role most effectively in any given case.

Another important factor to consider, aside from those mentioned above, is that mediators all have a unique approach to the process of mediation. While it wouldn’t be possible to categorize every mediator as having a clearly defined approach, experts in mediation often speak about several different types of mediation: evaluative; facilitative, and transformative. Each of these styles of mediation involves a slightly different approach or focus, and can affect not only the way parties communicate, but potentially the outcomes that are reached as well.

Evaluative mediation is a style of mediation that generally approaches a dispute with the aim of determining where each party stands in terms of the legal merit of the claims being made. Mediation, of course, is a process that is separate from the adversarial approach taken by the court system, but evaluative mediation bases itself on the that model Evaluative mediation is primarily aimed at determining the relative strength of the parties claims as they would stand in the court system, and negotiating a settlement on that basis. Evaluative mediation is most effective when the mediator has a strong understanding of the areas of law implicated in the parties’ claims, as well as the workings of the court system.

In facilitative mediation, the goal is not so much to determine the legal merits of the claims being made, but to help the parties to understand the claims made by the other party and to engage in meaningful dialogue about how to best resolve the dispute.

In our next post, we’ll continue looking at the different styles of mediation and the importance of working with a neutral mediator, whatever claims are being made or mediation style being employed. 

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