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Mediation: Three Discernible Methodologies
In addition to collaborative divorce, another alternative to litigation is mediation. Mediation is a 'consensual dispute resolution process in which a specially trained neutral third party helps disputants to identify issues, clarify perceptions and explore options for a mutually acceptable outcome.' http://courts. state.ny.us/ip/adr/What_Is_ADR.shtm. Within this broad definition, three discernible methodologies have emerged: facilitative (sometimes referred to as directive); transformative; and understanding-based. Most mediators practice some hybrid, often borrowing from one another's techniques and philosophical underpinnings in order to adapt to the needs of each set of clients. Within these three different models, there are varying views of the role of the mediator, as well as the role of the law and of lawyers.
Before analyzing how each model of mediation incorporates attorneys, it is important to recognize that there are certain benefits to mediating that flow, fairly consistently, to attorneys and their clients, regardless of the mediation methodology. The most significant among these is control.
Mediation before a neutral facilitator allows an attorney to retain control of his case rather than cede decision-making to a third party (judge, jury or arbitrator). Also, mediation is a low-risk proposition: There is no material disadvantage if a resolution is not reached. In fact, participating in the mediation process and exploring settlement options yields a benefit of its own, regardless of outcome. Similar to discovery, mediation provides the opportunity to flesh out areas of mutual accord and to examine each party's points of view.
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