By and large, mediation is an art, not a science. Although there are a variety of approaches to mediation, a good mediator will first listen to your unique circumstances, seeking an understanding of both party’s specific needs and priorities before deciding the best approach. The style of each mediator may be different and he or she should adapt to suit the goals of both parties. However, there are several accepted forms of mediation that may be used exclusively or combined to most effectively address your case. Understanding these different styles may help you to better understand the mediation process as a whole and ultimately, to determine whether or not this form of alternative dispute resolution is a viable option for your divorce proceedings.
Understanding the Various Approaches to Mediation
The following is a list of the most commonly employed approaches to mediation. As mentioned previously, your mediator may use one or more of these forms of mediation to best suit the needs, dynamics, and priorities of both parties.
Facilitative mediation: this was the first approach to mediation and was the only type practiced during the 1960s and 1970s. The goal of this style of mediation is to create an environment that facilitates the participants in reaching an agreement between themselves. Essentially, the mediator’s role is to ask questions, to validate the perspectives of both parties, and to provide as much time, space, and information as is necessary to resolve the issue in a mutually agreeable way. The facilitative mediator does not provide recommendations, advice, or predictions about the outcome of the case if it were to proceed through the route of traditional litigation. The influence of the mediator is confined solely to the process of the mediation, while the participants determine if a resolution is reached and if so, the terms of the agreement.
Evaluative Mediation: this approach to mediation mirrors the approach of a judge during a settlement conference, with the mediator behaving as an examiner of both party’s arguments. The evaluative mediator will critically examine the strengths and weaknesses of each case, raising questions, making suggestions, and often predicting what may happen if the case was taken to court. This style of mediation is driven by the goal of reaching a resolution. As such, the evaluative mediator may make recommendations to one or both of the participants, shedding some light on the strength of their cases, as well as discussing their rights and responsibilities in the eyes of the law. This “devil’s advocate” approach is often useful in cases in which both parties have retained independent attorneys and one or both is considering the traditional litigation approach. The evaluative mediator can meet with both sides and discuss the positives and negatives of reaching an agreement during mediation versus going to court. In this form of mediation, the mediator has influence over the process and provides feedback that may influence the result of the mediation.
Transformative Mediation: this is the newest approach to mediation, given its name by authors Robert A. Baruch Bush and Joseph P. Folger in their seminal work The Promise of Mediation. Transformative mediation is guided by the principles of empowerment and recognition, which are used to re-frame conflicts and to establish new patterns for interaction in relationships. The transformative mediator will provide an environment in which each party is encouraged to recognize the other’s perspective in an effort to “transform” the relationship by shifting the lenses through which the parties view one another and their respective views of the world. During a transformative mediation, the participants control the process and the resolution, while the mediator responds to their positions and shifting dynamics throughout the process. The transformative mediator influences the mediation to the extent that the relationship of the parties is repaired or reconfigured for the future.
A Pragmatic Approach to Mediation
It is perhaps most valuable to view the forms mentioned above as useful tools that a mediator may employ in greater or lesser measure to best serve the parties involved. At Townsend, Tomaio & Newmark, our qualified mediators take a pragmatic approach to the mediation process, utilizing our extensive knowledge and diversity of experience to integrate various approaches in a way that is realistic and entirely customized to your unique situation. Although we are well-versed in the theoretical considerations of the mediation process, we remain committed to the practical considerations of your life. Ultimately, it is our goal to structure a mediation process that best serves your needs.
Meet Our New Jersey Divorce and Family Law Mediation Team
Our seasoned New Jersey divorce and family law mediation team is composed of a diverse group of legal professionals who specialize solely in divorce and family law. Led by three talented attorneys, each of whom has over 10 years of experience practicing divorce and family law mediation, our commitment is to develop creative resolutions to solve the most challenging issues facing clients and their families. Several of our attorneys are approved family law mediators pursuant to New Jersey Court Rule 1:40-12 and many have served as panelists for Matrimonial Early Settlement Panel Mediation Programs across the state, including in Morris, Essex, Somerset, and Passaic counties. To discuss your unique situation with one of our divorce and family law mediators today, contact our offices in Hackensack, Bergen County at 201-897-6670 or Whippany, Morris County at 973-975-0476 or submit your questions online.
