I could equally call this post “why someone you both like is not necessarily a mediator”.....  Sometimes I think it is important to define what exactly we are talking about when we talk about someone acting as a mediator.

Technically, the dictionary definition of a mediator is someone who mediates between two parties in dispute. This is, perhaps, an unhelpful definition. What we usually mean is that a mediator is a third party to a dispute that seeks to structure a process to allow the parties to bring about a peaceful end to a dispute between them. They are usually not a decision maker (although in some forms of alternative dispute resolution, there is a blend of decision maker roles at times, particularly if the parties can’t resolve their issue).

In Australia, professional mediators generally have either tertiary qualifications in law or social science and have practiced extensively in their chosen field before undertaking more study in mediation.

The role of a mediator in this sense is (or at least should be) multifaceted. It includes:

1. Understanding the nature of conflict;
2. Taking the time to meet with or at least speak to both parties separately to assess whether it is appropriate to mediate the matter, and gather information in preparation for the mediation to inform the way in which the mediator approaches the mediation;
3. Coaching both parties, ahead of the start of the process, about the nature of conflict, how a mediation works, and how to prepare for mediation;
4. Appropriately structuring the mediation to ensure that there is a “level playing field” between the parties during the mediation; and
5. Ensuring that the process adopted throughout the mediation maintains the even playing field, and allows the parties to work through the process of identifying the issues, assessing options to resolve the issues, and negotiating an agreement to resolve the dispute.

Sometimes, the mediator will help the parties to draft a “Heads of Agreement” type document at the conclusion. Depending on the agreement, it may be that the parties have agreed to, or expect a brief report to be completed as well at the conclusion – this is more likely in employment situations where the employer seeks a brief report or account of the outcome of the mediation, or in situations where the mediation is being provided by a government department like Legal Aid.  Both of these are optional depending on the process.

There are differing approaches or styles of mediation including:

• Facilitative mediation (where a mediator attempts to facilitate the parties in conflict negotiating a resolution to the dispute – in pure facilitative mediation approaches, the mediator doesn’t tend to give a view about the conflict);

 

• Evaluative Mediation (this is a type of mediation often used in legal disputes, and mediators are usually more inclined to make recommendations, suggestions or express views – usually this involves assisting parties to assess the legal merits of the arguments and it is often referred to as “bargaining in the shadow of the law”; and

 

• Transformative mediation (where the focus is on empowering the parties to resolve their conflict and meet each other’s needs and interests – in effect, the process aims to transform the parties and their relationship to resolve the conflict and avoid future conflicts).

Whilst there may be different approaches within these categories (for example, narrative mediation is arguably a form of transformative mediation but it isn't the only approach in this space), these are the three main approaches.

Mediators are trained in one form usually (and more often than not in Australia, that is the facilitative model), however it is my view that mediators ought to adjust their approach and borrow from the most suitable approaches for the particular conflict situation at hand – although trained in pure facilitative models of mediation, I’ve studied both transformative approaches to conflict, and have personally experienced hundreds of evaluative mediations as a legal representative, and done many as a mediator in a family law context. My observation is simple - utilising a purely evaluative mediation approach, for example, is rarely going to help co-workers who have to have an ongoing working relationship with each other – it’s too focused on the legal aspects without resolving underlying issues which may continue to cause conflict. Similarly, some personality driven disputes need the nuance of transformative mediation approaches to get around past difficulties – pure facilitative mediation approaches might not be so helpful.

Mediation should never be “one size fits all”, and good mediation is undertaken by highly trained, skilled and experienced practitioners with the understanding that they are being entrusted to help people that are probably already hurting – and it is important not to add to that burden of hurt.