IN MEDIATION I ACT AS A FACLITATIVE MEDIATOR AND NOT AS A EVALUATIVE MEDIATOR
Facilitative Mediation is different to evaluative mediation in that in facilitative mediation, the mediator works by assisting the participants to a solution using key skills honed, by encouraging the participants to create solutions which they own in a climate of fairness and balance and by using intelligent listing questioning and rules.
It is different as evaluative mediation is a process whereby the evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases and predicting that the judge or jury would be likely to do. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues, whereas as facilitative mediator I will not do so. Accordingly, the I not make recommendations to the parties, give my own own advice or opinion as the outcome of the case or predict what a court would do the case.
In a facilitative mediation, which is what I am doing, I am not a Judge of the dispute. The participants are in control and power remains with them. I am not there to recommend or assess the merits of the case with them and accordingly as long as the parties are content to reach the settlement and content with the advice given by their lawyers, I will not interfere as it is their settlement.
You can only tell the other participant what another has said in private session with that participants express consent. If you need to tell them about what the other said, you need the others’ express consent.
WHAT IS THE IMPORTANCE OF THE MEDIATION AGREEMENT?
The mediation agreement is important because it sets out basis and rules upon which the mediator and participants can act. The important points amongst others in the Agreement are that the Mediator cannot be called as a witness to any matter that arose in the Mediation unless an Order for the Court has been obtained. The mediator is also protected against action or claims by reason of him acting as Mediator. The agreement is also important to the participants as other matters discussed at Mediation are without prejudice and private, and nothing said or done at Mediation can be repeated or relied upon otherwise than in a Settlement agreement reached following a successful mediation. The mediation agreement also protects the parties from any notes or documents produced by the Mediator as these must be destroyed by the Mediator, thus preserving the confidential nature of the mediation. The agreement also gives the Mediator the right to terminate the Mediation in his absolute discretion, without challenge or reason. If the Mediator considers it appropriate.
Download our Mediation Agreement