Monday, 1 July 2013

[ADR] Four basic types of mediation and a Hybrid model of mediation (Evaluative, Facilitative, Settlement and Therapeutic)


The four basic types of mediation include:

Settlement or compromise
(see Google)
Therapeutic mediation
(see Google)

Facilitative mediation

The third party, mediator, involved in facilitative mediation  has the primary role in assisting parties with the management of the mediation process. Unlike evaluative or advisory mediation models, the mediator cannot make advices regarding the facts and possible resolution of the disputes. This model, many argue, underpins the core purpose of the mediation- the self-determination of parties in reaching the negotiation. The mediator therefore can only be described as a third party who sets up the avenue and relevant atmosphere for an effective mediation to take place. 

Evaluative mediation

The evaluative mediation involves the process of a third party not only managing the process of the dispute resolution but proactively engaging in the process of resolution in terms of providing advice to the process, and in some cases, to possible and favourable outcome to the disputes.

Criticisms of the facilitative and evaluative mediation

Both models, unfortunately, are not exempt from scholarly and judicial criticisms. In terms of preserving the self-determination aspect of mediation, the facilitative model does its best compared to evaluative mediation which critically undermines this core value. 

On the other hand, the evaluative mediation is mostly criticised for the lack of necessity for the evaluation. As hinted above, this process undermines the cornerstone of the mediation (self-determination) by actively intervening in the process of decision-making. Again, purists argue that it is not the authorised practice of law. This criticism is well-supported by research conducted in many jurisdictions. The Harvard Law Review of 2011 that researched into the effectiveness of the evaluative model concluded that it is possible to mediate cases without using any evaluative techniques. 

The new model: Hybrid mediation


1 comment:

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