It is hard enough to be told that instead of a judge deciding that you are right and your spouse is wrong, you have to go to mediation. I suspect that you really didn’t want to know that mediators use different models of mediation! They do, and as a consumer, you probably want to understand enough about the mediation choices that exist to select a model that makes sense to you.
Mediation – a process where you, your spouse and sometimes your lawyers work with a neutral mediator to reach a voluntary settlement – has been around for decades. Courts like it, particularly for divorces. Some mediation programs are mandatory; others are strongly encouraged. Some are free; others are paid for by the users. You may or may not get to choose your mediator. If you do, you want to find out what mediation model the mediator practices. As you will see in the following table, mediation models differ widely and mediators who use them have different goals.
Goal of the Mediation
Role of the Mediator
How the Mediator Behaves
|Facilitative Interest-based, or Problem-Solving||Settlement and process satisfaction||The mediator focuses on uncovering the interests and objectives of the disputants so that these can lead to creative solutions||Helping the participants make decisions based on their interests|
|Transformative Therapeutic, or Reconciliation||Participants make positive changes in their interactions with each other, thereby allowing for informed settlement||The underlying causes of the problems are examined so that behavioural, emotional and relationship factors are addressed in the outcome||Changing the nature of the relationship between the participants using empowerment and recognition|
|Evaluative, Advisory or Managerial||Settlement||The mediator, usually a high status individual, is often persuasive, encouraging the disputants to consider legal rights and entitlements which in turn act as the parameters of the negotiation||Creating doubt about the strength of a disputant’s position|
|Narrative||People relate differently to each other and the conflict story becomes less compelling, thereby allowing resolution||The mediator tends to control the dialogue, focusing on people’s stories. Questions are asked to encourage disputants to describe the conflict differently in positive, peaceful ways.||Weaving a new conflict story that is based on respect and cooperation|
Mediators ask divorcing spouses to work with them to negotiate a voluntary settlement. The key skill that mediators bring to mediation is their neutrality – they do not side with either one of you. This is because the two of you, not the mediator, make the decisions. This requires a lot of skill on the mediator’s part and trust on your part.
Not all mediators have the same training. Unlike doctors and accountants, there is no licensing body for mediators. Some mediators belong to dispute resolution organizations that have ethical guidelines. There are also voluntary certification programs that mediators can apply to through a dispute resolution organization. The point is, you cannot assume that all mediators have a similar basic level of competence and expertise. When you get to choose your mediator, it is up to you to determine if the mediator is right for you. Here are some questions you might ask the mediator that you are considering using:
- What is the mediator’s training?
- What is the mediator’s professional background?
- Is the mediator certified? By whom?
- What mediation model does the mediator use – is this right for you?
- Does the mediator have a conflict of interest?
- Is the mediator willing to let, and possibly encourage, mediation participants seek creative solutions?
- What is the mediator’s fee?
These are just some of the questions set out in Checklist #7, Selecting the Mediator at page 76 of my book, Preparing for Mediation: A Dispute Resolution Guide.
Here’s a closing tip. People tend to be suspicious when one mediator is proposed. Rather than encounter resistance to a specific mediator, try suggesting up to 3 mediators who you would be wiling to work with and share your suggestions. If the mediators that you have proposed have web sites, you might want to refer your spouse to their web sites.
Deborah Lynn Zutter, B.A., LL.B., LL.M. is a certified comprehensive lawyer/mediator with Family Mediation Canada. She brings over 25 years of experience to her mediation and collaborative law clients. Deb is active in the conflict resolution community as a speaker, trainer and author and she has served community in various roles. She is the Past Chair of the National ADR Section of the Canadian Bar Association, the ADR Task Force of the Law Society of British Columbia and the Mediation Development Association of British Columbia. Her book, Preparing for Mediation: A Dispute Resolution Guide is in its 2nd edition.