Differing Definitions of Mediation

Mark Baer wrote recently in a Huffington Post article “What Does Mediation Really Mean?” about how the definitions of Mediation mean different things to different people, and how the vagueness that creates can be confusing to the client. He refers to three different forms of mediation that all get lumped under the general terms “Mediation” – evaluative, facilitative, and transformative. A good discussion of the of the differences between those three is provided by Zena Zumeta in another article.

Basically, evaluative mediation is closely linked to the litigation process. In my area (King County, Washington), it is what we typically call a settlement conference. In this mode, the mediator works to bring the parties to agreement by evaluating the merits of their respective positions and the likely outcome at trial. This is often done shortly before trial, after the attorneys for both sides have developed their cases, as a last ditch effort to reach settlement before incurring the expense of going to trial. The theory is, if we can reach agreement on what is going to happen at trial, then we can skip having to go to trial.

On the other hand, facilitative and transformative mediation are more alternatives to the litigation process than a part of it. Both focus on helping parties to a dispute develop their own resolutions based on the interests and concerns of the parties rather than the concerns of  the court system. In King County, this is often referred to as “early mediation”, meaning it typically takes place before the legal cases have been worked up by lawyers rather than after.

The distinction between facilitative and transformative is somewhat closer. In the facilitative approach, the mediator works to guide the parties through their own discussion to help them come to their own resolution, rather than one pushed by the mediator. The transformative model appears to take that approach, but goes beyond it to assist the parties in recognizing the needs, interests, and concerns of the other in order to create mutual solutions that work best for both. The transformative model is similar to the Collaborative process, except that in Collaboration each party has an attorney trained in mediation, rather than working with a neutral mediator.