Mediation is where a neutral third person assists people to reach agreement over an issue in dispute. The aims and procedures used by mediators vary.
At its core mediation should be;
- consent based;
- voluntary;
- confidential.
There are two main styles of mediation. They are ‘case settlement’ mediation and ‘interest based’ mediation.
Case settlement mediation
In case settlement style mediation the main actors are usually the lawyers. The parties may speak for themselves, but their participation is limited and usually choreographed. The focus of the discussion is usually narrow and based on legal rights – i.e. what is the Court going to do? It doesn’t go into broader issues or look at ‘fairness’. The negotiation is usually positional and competitive; like when you’re buying a car. One person starts at a high point, the other at a low point, and the offers come together until agreement is reached. Usually the mediator is directive; i.e. they tell the parties what they think the answer is. Great if they agree with you – not so great if they don’t!
Case settlement mediation is very popular in a commercial environment, where issues boil down to dollar figures and relatively superficial personal relationships and there is usually not an ongoing personal relationship to manage.
Case settlement mediation is also popular in the family law environment and is usually ordered by the court once proceedings have commenced, with many barristers and ex judges using their considerable expertise to provide directive solutions to quite complex problems. The solution proposed is usually not particularly creative nor concerned with the parties’ underlying interests or relationships.
Interest-based mediation
Interest-based mediation looks at issues beyond just what a Court would look at. It focuses on parties’ interests; i.e. what is important to them. It is about supporting cooperative negotiation over the issues in dispute.
Here the mediator is non-directive as to outcome, assuming that the parties know their situation better. They understand that any agreements reached will only be long lasting if the parties have generated them themselves and fully commit to them. They assist the parties to clarify the issues in dispute, ascertain needs and recognise the other party’s goals and aspirations.
The mediator attempts to build trust and help the parties to share information, brainstorm options for settlement and search for creative solutions. The outcome is not limited to remedies that the court would provide and allows creative problem solving and agreements.
For example in family law the law is that property settlement must end the parties’ financial relationship – i.e. sever all financial ties. That’s not always the best option for people. It may mean that the family home has to be sold and neither party has enough money to buy a new home. In interest-based mediation, parties can agree to something different. For example they may agree to keep the family home and make arrangements to sell it down the track when the kids have all left home.
Interest-based mediation is relationship driven; it works on the premise that the parties will usually have to interact with each other after an agreement has been reached. Therefore it seeks to empower the parties to work on their dispute resolution capacity, engender empathy and understanding and facilitate a better working environment into the future.
Which is best for me?
It is important to note that mediators will usually sit somewhere along the continuum between case settlement and interest-based styles, sometimes even changing their role in a mediation to suit the situation. For example, if the parties in an interest-based mediation become stuck a mediator may begin to suggest settlement options or even become more directive in what the outcome should be, assuming the parties are happy to accept this.
Neither process is better or worse than the other. It is more about understanding which is better for your particular circumstance and which will lead to a process and agreement that you can live with into the future. Of most importance when engaging a mediator, is to ask them where they fit along the continuum and whether they can tailor their service to give you the type of mediation it is that you want. No matter how wonderfully skilled a mediator is, if they are engaged in a process that does not suit your situation or aims, the agreements reached just may not be what you had hoped for.
Elisa Turco
