Thursday 18 June 2020

TYPES OF MEDIATION By Mansi Verma


1. Facilitative mediation:
Facilitative mediation is also known as traditional mediation in which a professional mediator attempts to negotiate between the parties in a conflict. The mediator tries that the parties reach their own voluntary goal by understanding each other's interests more deeply rather than giving their own recommendations or imposing their own decisions. With some understanding built, the parties and the mediator work together to build a number of potential solutions. Once this is done, the parties try to find the solution with the most maximized value. In facilitative mediation, the mediator tries to keep their own views to themselves regarding the conflicts. The basic belief is that the parties can resolve the dispute on their own with a little help from the mediator.

2. Court-mandated mediation:

Mediation is defined as a completely volunteer process but sometimes when the parties want the decision to be speedy and cost-efficient it is mediated through the court. When the parties and their attorneys are reluctant in engaging in mediation, there might be a chance that their odds of settling via court-mandated mediation become low. But when both parties know the benefit of engaging in the process, the settlement rates get much higher.

3. Evaluative mediation:
This type of mediation stands in direct contrast with facilitative mediation. In evaluative mediation, the mediator can give his recommendations and suggestions to express his opinions. These opinions are generally based upon a common sense of view of the matter. Evaluative mediators give an idea of the strengths and weaknesses of their positions and may predict the court outcome. Evaluative mediators focus on the parties to help them access legal merits and make fair decisions accordingly. Evaluative mediators are generally lawyers who have better legal knowledge regarding the dispute and this type of mediation is generally used in court-mandated mediation.

When you just want things to “get done”, evaluative mediation comes into play. When the trail comes up, the attorneys may suggest an evaluative mediator with the hope of reaching a deal without going through the trial.

4. Transformative mediation:
In this, the mediators try to encourage and empower the disputants to solve their conflicts and help them recognize each other’s interests, needs, and values in a better and thorough way. Empowerment, according to Bush and Folger, means enabling the parties to define their own issues and to seek solutions on their own. Recognition means that parties understand each other’s point of view and why they want that decision of theirs. The potential in transformative mediation is that all parties or their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other "recognition".

5. Med-Arb:
It is a hybrid of two well-established processes i.e. mediation and arbitration to resolve conflicts among the parties. It is a conjunction where a third party plays neutral as a mediator and an arbitrator. Med-Arb represents a process that serves to the best of the client’s interests. It saves time and money for the two sequential phases, mediation, and arbitration in two important respects. First, if the parties do not reach a solution in mediation then they do not have to hire another third party neutral who is unfamiliar with the case and then prepare for the arbitration phase. Second, the issues generally get narrow down in the mediation phase and can be forwarded directly into the arbitration phase.
Sometimes, a reverse hybridization process of arbitration and mediation takes place where the parties initiate with arbitration but later is forwarded to the mediation phase for negotiation purposes. This is known as Arb-Med.

6. E-mediation:
Electronic mediation comes into play when it is difficult or nearly impossible to meet face-to-face, for example: during COVID-19 times! E-mediation is an online dispute resolution (ODR) that is easy to use, cost-efficient, and a fast way as no time is consumed in traveling to resolve disputes. E-mediation is a procedure done using information and communication tools (for example computer, cell-phones, video conferencing, etc). Over recent years, e-mediation has become popular because of the global economy. More and more companies are expanding their business in different countries and the digitalization of business leads to an increase in the number of cross-border disputes. In such cases, the distance between the parties hinders the effective protection of their interests.
With benefits, some disadvantages also sweep in as it lacks empathy, rapport, and other attitudes and effects that make face-to-face mediation what it is. Messages conveyed online, especially through text can be easily misinterpreted causing deterioration in trust as face-to-face meditation is very much transparent no matter who is speaking at the moment. 

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