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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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