What is the Difference Between Facilitative Mediation and Evaluative Mediation?
Mediation has become a popular form of conflict resolution for personal relationships, professional relationships and even legal issues. Many corporations and federal agencies offer alternative dispute resolution (ADR) to their employees in the event that there is a disagreement. It provides a neutral forum for airing disagreements where an impartial third party listens and provides feedback, validation, and potential resolutions. Although legally binding contracts and paperwork can result from a session, the discussion and negotiations themselves are not legally binding. This type of dispute resolution is often much preferred over the alternatives including court appearances or disciplinary action at work, although it is usually voluntary.
There are two styles of traditional mediation: facilitative and evaluative. There is also transformative mediation, a newcomer on the scene, but the two basic styles are still the mainstays and are generally preferred for dispute resolution.
This is the oldest type of mediation, made popular in the 1960s and '70s. In this type of dispute resolution, the mediator works with all the parties to aid them in reaching a resolution that is agreeable for everyone involved. The mediator listens to all sides, helping the parties analyze the issues as well as explore options that would be favorable for a resolution. While the mediator does not recommend a solution, he or she does offer advice and even opinions regarding the potential outcome. It is the job of the mediator to keep the opposing parties from berating each other and digressing into a bitter language, resorting to name calling and other non-productive behaviors.
With this type, all parties can hear each other's point of view in a safe environment. The mediator listens, validates concerns, and aids the parties in coming to a reasonable, mutually acceptable agreement.
This type of conflict resolution is more exploratory in nature, and it is modeled on adjudicated settlement conferences. The mediator works with the parties to find a satisfactory resolution by identifying the weaknesses in their argument and even making predictions regarding the reactions of a judge or jury. They may even go so far as to informally recommend consequences and results of cases. It is more focused on the legal aspect of the parties as opposed to the personal interests and needs. As such, the evaluative mediator will lean more toward evaluating issues from a legal perspective, incorporating legal concepts into the mix. In this type of mediation, there will be more of an inclination toward cost/benefit analysis and other similarly structured analysis tools for guiding the parties to an agreement that is acceptable for all involved.
Both of these styles has its benefits and drawbacks, which make it vital that the type of dispute resolution be tailored to the situation, parties, and specific disagreement.
if the parties cannot or do not come to an agreement, does the mediator make recommendations to the judge who will make final decision? This is a child custody case.
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