Mediation Message No. 12

Mediation is a Dynamic Process

Mediation includes different approaches and styles, such as facilitative and evaluative mediation and distributive and integrative bargaining. Mediators, in facilitative negotiations, do not impose their opinions concerning the facts, law or potential outcome on the participants (as is done in an evaluative method), preferring instead to use non-coercive means in arriving at a resolution. Distributive bargaining is competitive in nature because the parties are usually vying over a fixed asset, such as a sum of money or a piece of property. In contrast, integrative bargaining is more creative as it attempts to reward all parties so that there are more winners than losers when the day is ended.

Participants in a mediation should expect to be involved in all of the above approaches because the process is best served when the mediator reacts to the nature of the parties, their goals, the surrounding facts and the applicable law rather than expecting everyone to conform to a pre-conceived game plan. In other words, mediators are involved in a dynamic process that continually changes as events unfold. As examples, a joint caucus at the beginning of a mediation, while common, may be harmful because of prior antagonism between the opposing parties or attorneys; intensive fact gathering may be necessary in one instance because discovery has not begun whereas it is not needed in another case since the trial is imminent; the mediator may find it helpful to meet jointly with all of the attorneys and unproductive to do so in another, unrelated matter or the parties can, in some instances, be encouraged to meet only with the mediator and without their respective attorneys. There are no established guidelines for using any of these techniques; each is dependent on the evolving circumstances of the mediation, which, in many circumstances, can not be predicted.

Copyright, Michael D. Marcus, March 2004

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