VARIATIONS ON A MEDIATION THEME:
DIRECTIVE, FACILITATIVE AND TRANSFORMATIVE
by
DAVID B. HARWI, ESQ. AND GEORGE REATH, JR., ESQ.

Mediation is a dispute resolution process in which the disputants are active participants. It is a process in which there is no resolution unless there is an agreement as to the resolution. It is process from which the disputants may depart at any time. It is a process which uses a neutral individual who has no formal authority to impose a solution on the disputants. However, the approach that a mediator takes during the course of the mediation can have significant impact on the course and outcome of the mediation and the disputants.

This article focuses on three different styles a mediator may utililize in a mediation. It is the disputants who own the process. It is, therefore, important for the disputants to understand the differences to ensure that they get what they want.

DIRECTIVE
The goal of directive mediation is resolution of the dispute. Isn’t the goal of all mediation dispute resolution? No, as you will see below. In a directive mediation the neutral will let the mediation develop as you would expect with the disputants arguing their positions and with the mediator helping them to develop their real interests and needs. This process may suggest a resolution to the disputants. If it does not, the mediator becomes an active problem-solver along with the disputants. He injects his perspective into the process. Although the mediator has no authority to impose the solution on the disputants (the mediator is not an arbitrator), the mediator may actively argue for his solution because it is a solution. The mediator directs the disputants to a solution and sells it.

FACILITATIVE
The goal of facilitative mediation is also resolution. It does not differ in appearance from directive mediation. It differs in the role that the mediator plays. The mediator is not an active problem solver. Instead the skills of the mediator are used to facilitate the dialog between the disputants to the end that they find their own resolution.

TRANSFORMATIVE
The goal of the transformative mediator is not resolution. As described in the seminal work The Promise of Mediation by Folger and Bush, the goals of the transformative mediator are empowerment and recognition. Empowerment is the process of helping the disputants become clearer, calmer and more decisive about the problems confronting them. Empowerment can bring to the disputants greater clarity to the options confronting them. Recognition is the process of becoming less self-absorbed and defensive and therefor more understanding of the other disputant’s perspective of the dispute. Empowerment and recognition may, and frequently does, result in resolution, but that is not the goal of the mediator.

USES AND DESIRES
Each of the above models has its place in the dispute resolution arena. The transformative model, for example, is used in the workplace to address wide ranging matters such as team building and Equal Employment Opportunity claims. The directive approach is frequently utilized by lawyers who desire an independent person to provide impartial suggestions for resolution which are not binding upon the client. This outsider’s view may be used by a lawyer to encourage her client to move off of its present position, particularly when the resources available to continue the dispute may be limited. The facilitative model may reflect the most common expectation of the mediator’s responsibility in which the parties aim toward a solution which they are responsible for crafting.

It is important for the participants to understand the diversity of approaches to mediation, the attitude of the mediator toward each and his ability to work efficiently in each model.


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