Posted by Paul Kirkwood Commercial Mediator and Litigation Solicitor 13 July 2021.

A fellow mediator acquaintance of mine based in England very recently asked me to critically evaluate an article he had just written on an informal workplace mediation he had undertaken in his own workplace. Reading his piece, it struck me immediately that the nature of his intervention closely resembled that of mediators who work in the National Institute of Health in the USA-in a process described by Kenneth Kressel as Strategic Mediation. My acquaintance’s approach was to diagnose the problem and suggest a solution to both parties in consultation with both; then to orchestrate putting that into practice. In doing so, he used his undoubted expert knowledge of that workplace, its procedures and its needs, as part of his diagnostic tool kit. The outcome seems to have been to everyone’s liking after a bitter dispute where people were significantly upset with each other. My acquaintance felt that this outcome was a better one for everyone, than having one party pursue grievance procedure with an unknown and potentially inconclusive outcome.

I personally don’t have a problem with that approach (as long as both participating parties understand what is going on and consent)-but I suspect most Facilitative (and all Transformative) mediators would recoil. They would say the mediator wasn’t neutral or independent and by devising the solution was potentially undermining parties’ self-determination. They would say it wasn’t mediation. I wouldn’t agree with them-it’s just a different form of mediation. Both parties are still consulted by the mediator and have input, and both parties still have to consent to the solution he proposes (and can have input). Kressel has observed that many mediators say they are facilitative and do one thing-but that in reality they can be quite directive and do another. I often think that some mediators do this unconsciously, without realising they are doing it – but if they do it consciously and both parties understand what’s going on and consent, then what’s the problem? I thought these thorny issues deserved a fresh and open discussion about some of the different models of mediation, specifically Facilitative, Transformative and Strategic-so here goes.

In talking about this, I will discuss Kimberlee Kovach’s broad overview of ‘Mediation’ in her article of that name, and seek to give air to some different views about what Mediation means and involves when critically evaluating her ideas and statements.[1] in doing so I will consider Facilitative Mediation (FM); Transformative Mediation (TM) and Strategic Mediation (SM). I will also consider tensions within all models between facilitation and evaluation. I will consider issues arising from impartiality, neutrality, confidentiality, how cases are got into mediation; voluntarism versus mandation, and briefly, regulation.

Kovach states that ‘Mediation is defined as a process in which a third party neutral, the mediator, assists disputing parties in reaching a mutually agreeable resolution. Mediators aim to facilitate information exchange, promote understanding among the parties, and encourage the exploration of creative solutions… without forcing a decision on either party.’ [2]  Kovach identifies herself as a facilitative mediator.

Another definition of FM is given by Waldman[3], who in defining a norm generating style of mediation, describes the mediator as neutral and facilitative, not evaluative or directive. The parties themselves generate norms by which they judge any agreement they might enter into-these don’t come from the mediator or any other source.

Generally, Kovach asks, why mediate? In summary, mediation is informal and flexible; in reaching resolution parties can avoid the emotional drain from being continually engaged in conflict. She observes that communication between parties is in private, not in open court, where members of the public can observe. People may be more relaxed discussing private matters, privately. Additionally because the process is confidential (this is a major tenet of mediation) parties may feel more able to disclose fully all matters relevant to the real dispute, knowing, generally, what is said in mediation, is confidential, and isn’t admissible in other proceedings. She notes that mediation provides a forum for the expression, understanding and release of emotions; often critical to assist in resolution of conflict-and that this can create the possibility for a relationship to be preserved. Generally speaking ‘emotional venting’ isn’t something that judges in court are particularly interested in, and would probably foreclose on, on grounds of relevancy-even in the very real event of a case being heard. In mediation, she reminds us, parties themselves are the decision makers and exercise self-determination-the third party doesn’t decide matters. For many mediators, the predominant principle in mediation is self-determination. Finally she observes that unlike courts, where normally a judge decides and one person wins, the other loses; in mediation creative solutions might be found (pies might be enlarged) and a win-win outcome could be generated.[4]

Kovach asks, what happens in mediation? Well that depends on the style of the mediator. In FM she suggests a table of nine component parts, with four additional optional components as follows:

Preliminary arrangements

Mediator’s introduction

Opening remarks/Statements by parties

Venting (optional)

Information gathering

Issue and interest identification

Agenda setting (optional)

Caucus (optional)

Option generation

Reality testing (optional)

Bargaining and negotiation

Agreement

Closure [5]

She is at pains to point out the mediation process is fluid; these are some of the important things that happen in mediation but they overlap, and the process is not linear. Nevertheless the process seems quite descriptive, prescriptive and structured, with a beginning, middle and end. Also in FM the focus is very much on the dispute; and its resolution.

She talks about the role of the mediator. In FM the mediator is likely to stress that the process is voluntary (and could be left anytime); that the parties are the decision-makers retaining self-determination-he is simply there to facilitate the discussion-he is neutral and impartial; and finally, anything said between the parties is confidential. Kovach does discuss the fact that mediators may ‘ move the parties towards option generation’ (push?) (this is an absolute no-no in Transformative Mediation, of which more anon); have private meetings (caucus) with parties (to identify, privately, potential options for settlement) and engage in reality testing with parties in order to challenge options they have developed and as to whether they are ‘ realistic’, given all the discussions between, and information available to, parties. What she doesn’t do (and what many facilitative mediator seem unwilling to admit) is accept that these ‘moves’ are evaluative and go beyond mere facilitation.

A slightly fuller, and perhaps more honest, description of the role of a facilitative mediator is given by Waldman. She notes, notwithstanding ‘neutrality’, that a mediator will stop personal attacks; assist an inarticulate party; constrain at loquacious party-that is to some extent he will correct power imbalances. He may also play the agent of reality if one party appears to have unrealistic expectations; but he will not remove options identified by the parties as possible solutions, simply because they conflict with external pre-existing social or legal norms. [6] In other words he will evaluate.

Kovach asks, in addition to ‘what is the role of the mediator?’, ‘Why do mediators differ?’ This is the nub of the matter and the reason for very significant differences in mediation styles and mediator behaviour. She identifies two other significant approaches to mediation as compared to FM.

Firstly ‘Adherents of the so-called ‘transformative’ model of mediation suggest that the proper focus of the mediation is not on the dispute at all, but rather on the search for opportunities for each party to be empowered by the process and to view the dispute as a symptom of impairment of the parties ‘relationship’.[7] There is however far more to TM than this and it has a significant bearing on how to TM mediator behaves and his attitude to neutrality and power balancing.

TM is a model developed by Bush and Folger (B & F).[8] It starts from an assumption that ‘there is a basic human nature or identity, common to all people, the core of which is a dual sense of both individual autonomy and social connection.’ [9] That ‘in this relational view, awareness of both individual agency and social connection… is the very essence of human consciousness…’ [10] That ‘human beings have inherent capacities for strength (agency or autonomy) and responsiveness (connection or understanding) and an inherent social or moral impulse that activates these capacities when people are challenged by negative conflict, working to counteract the tendencies to weakness and self-absorption.’ [11]

B & F posit that when people get into conflict, they feel weak and self-absorbed-they become suspicious, hostile… and impervious to the perspective of the other person. They enter ‘The Negative Conflict Spiral’. The weaker I feel… the more hostile I am to you… the more you react to me in kind… (a)… vicious circle of disempowerment and demonisation (of other) (leads to)… conflict escalation’.[12] People want this negative spiral reversed-they want to transform the nature of their conflict interaction. B & F point out that conflict isn’t static and that people move from weakness and self-absorption, to becoming more confident and decisive and move from weakness to strength. As they do this, they become more open and understanding of the other party and shift from self-centredness to responsiveness to the other. By becoming strong they make an Empowerment Shift; they are able to be responsive to others and make a Recognition Shift to the other acknowledging their perspectives and needs. They move from a negative downward spiral, which is destructive, alienating and demonising to a positive upward spiral which is constructive, connecting and humanising-from a vicious circle to a virtuous circle.[13]

What does this mean for a mediator’s behaviour and role? In TM the role of the mediator is to help parties make these Shifts by supporting people’s capacities for strength and responsiveness through their discussions in the mediation-but they must not supplant parties own efforts to Shift by suggesting solutions. ‘No mediator can ‘get’ parties to shift out of weakness or self-absorption, nor should he try’.[14] If he does, he is undermining party self-determination. The job of the mediator is ‘to help parties transform their conflict interaction from destructive and demonising to positive and humanising’… resolution of the conflict is not all-important.[15] While ‘the transformative model doesn’t ignore the significance of resolving specific issues… it assumes that if mediators do the job just described…parties themselves will very likely make positive changes in their own interaction and find acceptable terms of resolution for themselves…’.[16] In the event parties do reach a resolution, significant Empowerment Shifts have occurred-even if the mediator thinks any agreement is stupid or unfair… ‘if a mediator is tempted to think, ‘perhaps steering the party to what I know is a better outcome is really more empowering,’ the clear understanding of Empowerment as a Shift from weakness to strength reminds the mediator that even a ‘poor outcome’ produced by the parties own process of reflection and choice strengthens the self more than a ‘good outcome’ induced by the mediator’s directiveness or imposition. That is, such ‘good outcomes’ do not engender strength of self, unless accompanied by the process of empowerment. Solving problems for parties is not transformative mediation because it fails to support-and probably undermines-genuine party empowerment.’ [17]

A number of things flow from the above. TM doesn’t follow the descriptive process outlined by Kovach. The parties decide how the process should proceed-the mediator ‘follows’ parties lead; the conversation and what is discussed is led by them. Anything that smacks of mediator directiveness or evaluation is out. Difficult to ‘nudge’ parties in the direction of, for example, option generation, or reality testing.

B & F also emphasise that ‘supporting empowerment’ does not mean power balancing or redistribution of power within the mediation process itself in order to protect weaker parties…or… to give more power to those who are members of defined weaker groups.[18]

It seems to me that becoming empowered through building strength and allowing self to give recognition to others is the only principle in TM. True self-determination can only come about if parties can give informed consent-and providing power balancing information seems to be off-limits as directive. I suppose the mediator is being impartial or neutral, although it seems to me that this is the neutrality of nihilism-and neutrality that is based on no value. Interestingly I note that B & F avoid issues of neutrality, as I see no mention of it anywhere in the text?

Secondly Kovach identifies that another form of mediation practice exists identified by the distinction between facilitative and evaluative practices. ‘Should a mediator share with the parties… His assessment of what a court would likely do with the dispute in question (evaluate)?’ [19] Here I want to contrast a form of evaluative mediation that Kenneth Kressel calls the strategic style.[20] I should preface this by noting that Kovach has said elsewhere that, ‘Evaluative Mediation Is an Oxymoron’.[21]

Kressel describes an approach to the mediation role which focuses on the mediator’s attention to establishing whether there is an underlying or latent cause that has fuelled the parties conflict, and if so directing parties attention to it, in addressing resolution of it. He calls this a strategic style-for reasons that will become apparent, I think this is a variant of the evaluative style. The role of the mediator and his behaviour are markedly different from both the earlier models.

First there is ‘an initial diagnostic stage… primarily concerned with identifying the latent causes that are most relevant to informed and pragmatic problem-solving… the mediator is strongly directive; the parties get to tell their story, but only in response to focused and informed mediator question asking. The diagnostic stage is driven by mediator experience in recognising familiar patterns of polarisation and the latent causes likely to be fuelling them.’ [22] Secondly we have the strategy formulation stage-usually the mediator shares his thinking with parties about the underlying cause-but he also puts forward a plan. Normally this would be with a respect for parties right to modify or reject-but if there is urgency parties may have little time for input. ‘In the final implementation stage, the mediator engages in a highly directive orchestration of the problem-solving plan… although the strategic style is heavily dependent on establishing rapport, the approach is relatively unconstrained by concerns about neutrality.’![23]

Kressel gives a number of examples of this, but one will suffice. He calls it the ‘Avoidant Mentoring Dyad’ and it relates to a very demanding male mentor and a female postdoctoral fellow (PDF) who both work at the National Institutes of Health (NIH). The pair have stopped communicating-the PDF’s scientific performance has been identified by the mentor as poor, not likely to get better, and consequently the mentor wants to terminate her fellowship a year early. The approach of the mediator here was not the neutral, nondirective facilitative approach. He met with both parties separately, and came to the view that the mentor’s assessment was correct-he evaluated. In doing so, he concocted a plan (directive) that would allow the PDF to meet some of her needs (to complete her own scientific publication); but would enable the mentor to replace her with a more capable researcher by bringing the PDF’s departure forward. Kressel notes ‘One can argue that in any approach to mediation, there is at least covert direction from the mediator, since nobody can approach conflict free of values…however, in the strategic style mediator directiveness is obvious and strong… Although there is respect for parties at autonomy… the strategic style involves a mediator who has a distinctive point of view about how to address the conflict.’ [24] Why does this ‘evaluating directing’ style not have a high profile, you might ask? ‘I refer to the very tight grip in the ADR world of the idea that the proper mediator is a neutral, nondirective facilitator of the parties’ own search for solutions. Although it is often at striking odds with research evidence about mediator behaviour…’.[25]

Why are facilitative mediators so opposed to the evaluative school? Lela Love advanced a number of reasons why mediators should not evaluate.[26] I summarise the most important here. The roles of evaluators and facilitators are at odds. In her view the role of mediators is to assist disputing parties make their own decisions and evaluate their own situations, by facilitating communication. The tasks of evaluating facts or applying the law, or delivering an opinion, can compromise a mediator’s neutrality-he is forced to favour one side, or another.[27] If parties think they are in front of an evaluator, they will try to impress him and win their case. The mediation will resemble an adversarial court like situation. The whole idea of mediation is to move away from that and to collaborate in the search for a win-win solution through creative problem-solving.[28] Most mediation codes require mediators to be neutral-to evaluate is to breach that; if mediators move towards evaluation, they should only do so at the request of parties who give informed consent.[29] She identifies the possibility that there are insufficient protections against incorrect mediator evaluations; in some cases quasi-judicial immunity… ‘Can shield mediators from liability for careless opinions.’ [30] Unless a mediator ‘has separate training as a judge, arbitrator or neutral evaluator, he… may not be competent to serve as an evaluator’.[31] And ‘The collaborative paradigm of mediation… offers a dispute resolution process through which parties are taught how to resolve their own disputes’.[32] Developing the point that mediators can get the evaluation wrong-she highlights that this could stop a mediation succeeding where parties were close to agreeing. In one case a mediator ‘urged the company to be more flexible because the business did not have a chance of winning an appeal’. This assessment shut down the mediation because it froze union negotiators into their position (the company had been willing to compromise). Needless to say the company did subsequently win in court, the union losing, with success confirmed an appeal.[33] Caveat evaluative mediator! The thrust of her objections to evaluation are, it’s not what facilitative mediation should be about and totally undermines neutrality.

This brings us neatly to Kovach’s concerns about Impartiality and Neutrality which intermesh with issues arising from Confidentiality and Mandatory mediation. She raises a number of points but two spring out. She prefaces these by observing that ‘Mediator neutrality & impartiality are two common ways to describe the principle that mediators do not favour one party over another… (and) that mediators should be free from bias’.[34] Kovach observes that each party should be given the opportunity to be heard and participate-because otherwise there is a breach of neutrality. But she asks, what do you do if there is a serious imbalance of power? Grillo, in addressing power imbalance questions between men and women arising out of mandatory mediation in California over visitation/custody notes that mediators do seek to address these, by empowering the less powerful party; but that in seeking to do so they are no longer a facilitator, but take an active role in affecting process outcome.[35] Such an intervention is partial, not neutral; but if the mediator does nothing, can the weaker party participate effectively?

The other significant issue that Kovach raises with regard to neutrality is that of ‘informed consent’. She notes that some assert that mediators should have some role in determining outcome, but this has implications for mediator neutrality. If legal information is central to party decision-making in a mediation, it follows that someone will have to give it to parties. If parties have lawyers-they can provide. If they don’t, or only one does, the mediator can choose not to give the information he possesses thereby undermining the principle of informed consent, or he can pass it on, possibly going against the principle of neutrality. A good example of this is evidenced by Stuhlberg. ‘Consider the person serving as a mediator in discussions between a school district representative and a parent who is contesting the adequacy of the school’s proffered individualised education plan for the child who qualifies for such attention under federal and state disabilities laws. Should the mediator ignore the range of options licensed by the statutory provisions? Should the mediator dismiss as irrelevant any and all evidence as to how the school district has addressed such matters in other cases?… it is difficult to imagine how an intervenor could be helpful to parties by refusing to bring such information into the discussion’.[36] This is, of course, the mediator providing to, and perhaps even evaluating for parties, social/legal norm information, crucial to the outcome of decisions in mediation.

Kovach also considers issues pertaining to confidentiality in mediation and issues arising from whether mediation is voluntary, or mandatory. She points out that confidentiality in mediation brings a number of positive benefits. For example privacy means that people are more likely to disclose sensitive information than otherwise and that maintaining confidentiality helps in building trust between parties and the mediator, and also assists in maintaining neutrality.[37]

However confidentiality can be undermined, in a detrimental way, as a result of the intersection of law and mandatory mediation. Grillo points out that in California mediation is mandatory in custody/ visitation disputes. She also points out the discussions with mediators are meant to be confidential, but if parties can’t agree the mediator can make a recommendation to the court regarding custody or visitation and that most mediators recommendations are accepted by the judge.[38] By doing so, the mediator breaches parties confidentiality and undermines his or neutrality, as well as the principle of self-determination of parties.

Ironically Kovach notes in observations about the regulation of mediation, that ethical codes, though they vary considerably, tend to share several themes including…neutrality, confidentiality and self-determination…’.[39]

If more mandatory mediation follows-more care is going to be needed in what mediation needs from law!

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[1] Kimberlee K Kovach 2005, ‘Mediation’, The Handbook of Dispute Resolution (ed) Michael L Moffitt and Robert C Bordone, Jossey-Bass, 304-317

[2] Ibid. 304

[3] Ellen Waldman 1997, ‘Identifying the Role of Social Norms in Mediation: A Multiple Model Approach’ Hastings Law Journal, 703-770

[4] Kovach (n 1) 305

[5] Kovach (n1) 306; adapted principally from KK Kovach, ‘Mediation: Principles and Practice (St Paul, Minn.: West, 2004)

[6] Waldman (n3) 716-718

[7] Kovach (n1) 310

[8] Robert A Barruch Bush & Joseph P Folger The Promise of Mediation: The Transformative Approach to Conflict New Revised Edition 2005-Jossey Bass

[9] Ibid. 60

[10] Ibid. 60

[11] Ibid. 54

[12] Ibid. 50-51

[13] Ibid. 55-56

[14] Ibid. 67

[15] Ibid. 70

[16] Ibid. 68

[17] Ibid. 71

[18] Ibid. 76

[19] Kovach (n1) 310

[20] Kenneth Kressel, 2007 ‘The Strategic Style in Mediation’, Conflict Resolution Quarterly,vol 24, no. 3, 251-283

[21] Kimberlee K Kovach and Lela P Love 1996, ‘Evaluative Mediation Is an Oxymoron, Alternatives to High Cost Litigation’ 31, 31

[22] Kressel (n20) 255

[23] Ibid. 255

[24] Ibid. 274

[25] Ibid. 275

[26] Lena P Love 1997 ‘The Top 10 Reasons Why Mediators Should Not Evaluate’, Florida State University Law Review, 24, 97-948

[27] Ibid. 939

[28] Ibid. 940

[29] Ibid. 941

[30] Ibid. 942-943

[31] Ibid. 943

[32] Ibid. 943-944

[33] Ibid. 946

[34] Kovach (n1) 311

[35] Trina Grillo 1993, ‘The Mediation Alternative: Process Dangers for Women’ 100 Yale Law Journal 1545-1610, 1592

[36] Joseph B Stulberg 1997 ‘Facilitative Versus Evaluative Orientations: Piercing the ‘Grid’ Lock’, Florida State University Law Review Vol 24, 985-1005, 999-1000

[37] Kovach (n1) 313

[38] Grillo (n35) 1554-1555

[39] Kovach (n1) 315