Over several decades, mediation has proved to be a viable alternative to the traditional litigation process. Mediation offers a variety of benefits to parties involved in legal disputes. These benefits unequivocally ameliorate the situations parties find themselves in when pursuing a legal matter. The mediation process offers a vast range of techniques which can be tailored to many different types of situations that may arise in a wide range of legal disputes. Some of the most common techniques used by mediators are as follows: evaluative, narrative, interest-based, insight and transformative mediation. These techniques are typically used as tools to understand the positions of the parties, and to understand what the overall objectives of the parties are so that an agreement can be made without having to go to court. Through the use of these techniques, parties are able to resolve whatever issues they may have in an amicable manner, potentially preserving the relationship between the parties in the future. In addition to saving both time and money, mediation offers a more flexible and client-oriented process, focusing on the wants and needs of the parties in dispute, an idea which seems to contrast with a litigious court battle which may irreparably damage the relationship of the parties.
Evaluative mediation is a classic technique used by mediators to essentially inform involved parties of the strengths and weaknesses of their case, and to inform them about what a judge would likely do in accordance with the circumstances of their matter. The purpose of this technique is to suggest compromise between the parties, and to facilitate what may need to be compromised in order to reach a settlement.
Narrative mediation is a relatively new technique discovered in the mid-1980s. This technique essentially encourages both parties in a matter to tell their sides of the story from their own views. Then, the job of the mediators is to help these parties see the situation from a different perspective. This approach offers the parties an opportunity to understand how their “conflict story” arose, and then permits them to create a better lower conflict story going forward.
Interest-based mediation is used to explore the deeper, underlying interests of the parties. Typically, the common interests of both sides to a dispute are explored, and the mediator attempts to shift the focus from position-based wants to interest-based needs. This shift from “want” to “need” allows the parties to see where the other is willing to compromise, promoting the idea of listening to understand, and speaking to be understood. This technique ultimately focuses on constructive behaviours which tend to deescalate conflict, resulting in a settlement that is deemed favourable to all involved.
Transformative mediation is a technique mediators use in an attempt to empower each party in a legal conflict, encouraging them to recognize and accept the other’s needs and interests. This form of mediation encourages parties to transform the ways in which they view the other, ultimately helping the parties understand why there is a conflict, and how understanding the other sides position can help to compromise and resolve the issues at bar. The ultimate goal is to transform their relationship.
It is true without question that mediation is a successful alternative to litigation. Through the help of a mediator, parties are able to maintain control over the outcome of their issues, instead of having a judge make a decision that may not be ideal for a party. Mediation promotes mutually satisfactory settlements. Through the use of mediation, parties are able to maintain a civil relationship in the future. Ultimately, in addition to the convenience of saving time and money, mediation has a plethora of benefits of which parties can take advantage. With the right mediator and the correct mediation techniques, reasonable settlements can be achieved without having to pursue an adversarial and costly litigation process that certainly will not better the relationships of those involved.
– Written by Joseph Johnston, Student and Tom Dart, Mediator and Arbitrator