Mediation: models, process and the mediator's role
Mediation: models, process and the mediator's role
This domain tests the mediator's function and the architecture of a mediation: voluntary participation, self-determination, confidentiality, impartiality, and the difference between facilitative and evaluative approaches. It also tests how settlements are recorded and enforced.
Models and process
- Facilitative mediation: the mediator manages process and communication, helping parties identify interests and generate options; the parties decide.
- Evaluative mediation: the mediator, usually with consent, comments on strengths, weaknesses and likely outcomes; risk of shifting decision-making to the mediator.
- Transformative mediation: focuses on empowerment and recognition in the parties' relationship, not only settlement.
- Typical stages: convening and opening; information gathering; identifying issues and interests; agenda setting; caucuses; option generation; reality testing; bargaining; settlement and closing.
- The mediator is not a judge or arbitrator and cannot impose an outcome. The mediator controls process; the parties control substance.
Worked example
Two companies dispute a delayed IT project. In joint session each gives a legalistic position. The mediator separates them into caucuses. The supplier reveals that cash flow, not liability, is the real pressure; the customer reveals that it needs the system running for a regulatory deadline. The mediator obtains permission to share only the delivery concern, not the cash-flow disclosure. Options then include staged payment tied to milestone delivery and a short service credit. The mediator reality-tests each option against the litigation alternative but does not tell them what a court would award. The settlement is recorded in a binding contract; if they had chosen arbitration, they could ask the tribunal to record it as a consent award.
Traps
- Saying the mediator 'decides' or 'awards' a settlement.
- Breaking caucus confidentiality without consent.
- Assuming mediation is always confidential; exceptions can include threats, abuse, crime, or court order.
- Confusing impartiality (no bias) with neutrality (no substantive involvement).
- Letting an evaluative mediator pressure parties against self-determination.
- Forgetting that a settlement agreement needs clear terms and authority to bind.