The Court Of Public Opinion

Mediation is older than any legal system. The great Bacon wrote the praises of mediation nearly four hundred years ago, in one of his celebrated Essays:

?It is generally better to deal by speech than by letter, and by the mediation of a third, than by a man?s self . . . in all negotiations of difficulty, a man must not look to sow and reap at once, but must prepare business, and so ripen by degrees.? Francis Bacon (1561-1626)

To mediate means:

1.To bring about (an agreement, peace, etc.), as an intermediary between parties by compromise, reconciliation, removal of misunderstanding, etc.

2.To settle (disputes, strikes, etc.), as an intermediary between parties: reconcile.

3.To effect (a result) or convey (a message, gift, etc.), by or as by an intermediary.

4.To act between parties to effect an agreement, compromise, or reconciliation.

5.To occupy an intermediate place or position.

6.Acting through, dependent on, or involving an intermediate agency; not direct or immediate.?

Mediation means:

1.Action in mediating between parties, as to effect an agreement or reconciliation.

2.International law, an attempt to effect a peaceful settlement between disputing nations through the friendly good offices of another power.?

Synonym(s):

1.Mediation, arbitration designate processes for bringing about agreement for a reconciliation between opponents in a dispute. Mediation implies deliberation that results in solutions that may or may not be accepted by the contending parties: mediation settled the strike. Arbitration involves a more formal deliberation, it being understood that the results will be binding on the contending parties: ?the strike was settled only after arbitration.?

(All definitions are reproduced from Webster?s Encyclopedic Unabridged Dictionary of the English Language)

Webster?s synonyms tend to confuse mediation with arbitration. Arbitration is designed to produce a result with a winner and a loser; it is a not a process for ?bringing about agreement for a reconciliation.? Mediation unlike arbitration is not designed to produce winners and losers, but precisely a reconciliation of differences. Mediation attempts to be win-win. They are both ?alternative dispute resolution? mechanisms, but one bears little resemblance to the other.

Webster does accurately state the role of mediator as intermediary between parties to a dispute. Mediation is as old as civilization and pre-dates anything resembling legal process. The mediator is a go-between, who passes busily from party to party in an attempt to assist them reconcile their differences. In late classical Athens, the comedies of Menander often featured a wily slave who carried messages, and in the country house farces beloved of Victorian audiences, the chambermaid often served as an intermediary between two lovers. The Aztecs, who had no written language, used messengers or intermediaries to convey exact messages of outstanding length. Carrier pigeons have been used to carry messages for hundreds of years, and can navigate over endless uncharted miles, but so far no carrier pigeon has become a mediator.

Though a mediator may lack some of the abilities of a carrier pigeon, she can and does carry messages, but that is the least of her functions. She is a trained professional who has the skills to overcome numerous obstacles, the perseverance to continue the process despite all impulses of the parties to end it, and who is able at length to bring them to closure of the particular dispute despite their differences, and sometimes achieve a full reconciliation. Such results are not easily achieved, and such skills are not easily learned.

The textbooks say that there are three ways to mediate, or three types of mediator. These are 1) evaluative 2) facilitative 3) transformative.

An evaluative mediator is one who is prepared to express an opinion as to the likely outcome of a dispute. Parties who seek an evaluative mediator will often choose a retired judge. The prerequisite for giving an evaluation is subject matter expertise. Judges, who have decided hundreds or thousands of cases, or who have observed hundreds of juries reaching a verdict, are often trusted by parties to render an evaluation, which the parties may find useful in coming to a decision about their particular dispute. However, not only retired judges are used for the purpose of evaluation. Persons engaged in a construction dispute will often go to an engineer, general contractor, or other person with subject matter expertise.

A facilitative mediator is one who stresses that the function of his job is to enable, or facilitate, parties to communicate and negotiate with each other, in order to arrive at their own evaluation and resolution. A facilitative mediator may consider it unethical to render an opinion. The facilitative style may require greater patience and skill in enabling parties to craft their own resolution, than may be necessary for an evaluative mediator. Parties may prefer an evaluative mediator when they wish to resolve their dispute and proceed on their separate ways. Facilitative mediation may be more desirable where the parties wish to, or must, engage in a continuing relationship with each other, so that the particular dispute is merely a roadblock that needs to be overcome in order to enable that continuing relationship.

Many mediators are perfectly willing to be either evaluative or facilitative, as the situation demands.

The third type of mediator is called ?transformative?, and the goal of transformative mediation is far bolder, and more like therapy, than the goal of traditional, evaluative or facilitative mediation. ?Transformation? suggests that the goal is to affect a transformation, in the parties themselves, and in their relationship. Transformation means (1) act or process of transforming; state of being transformed. (2) Change in form, appearance, nature, or character. (3) Theatrical, a seemingly miraculous change in the appearance of scenery or actors in view of the audience.

In ?Mediating Dangerously,? (2001) Kenneth Cloke, a pioneer of transformational mediations, writes:

?The transformational or elicitive model of mediation? views conflict as something to be learned from, and the parties as ready for introspection and fundamental change. The mediator becomes an empathetic yet honest agent, whose role is to elicit recognition and empower the parties to solve their own problems. ? Personally I use a modified version of the transformational model, based a more intuitive, integrative, dangerous approach to mediation. I neither direct nor stand apart from the conflict, but interact with the parties and reflect on possibilities, based on intuitive assessments at the time.?

The function of a mediator is to enable change. A mediator is a catalyst whose presence and skills enable change. The type of change so enabled is the most difficult of all ? change of mind.

Change is needed for movement to occur. Movement is needed for the disputants to approach each other. The disputants must approach each other for negotiation to occur. Negotiation must occur for solutions to be explored. Solutions must be explored for the disputants to achieve a resolution that satisfies competing interests.

At some level, disputants cherish their dispute, and the emotions and attitudes that accompany it ? they want to lay down the burden yet are reluctant to do so. They want the satisfaction that accompanies winning. They want not merely to win; they want to other side to lose, and preferably be manifestly seen to lose.

When an outsider hears both sides of a conflict, she may get the impression that the disputants are in illusion, the competing illusions colliding in conflict. One or both of them has ?got it wrong.? If both sides are brought to share roughly the same reality, or view of the case, they settle. This is called by many colloquial expressions, like ?getting into the same ballpark,? ?getting into the same zip code,? etc. The presence and skills of the mediator tilt the balance in favor of reality, rationality, and closure.

The three bedrock principles by which mediation is conducted are (1) confidentiality (2) voluntary participation and (3) party control of outcome.

Charles B. Parselle is a California mediator, arbitrator and attorney. He graduated from Oxford University, then joined the California Bar in 1983. His articles are regularly published in legal magazines, such as The Daily Journal, Bar Notes and Mediate.com. He is the author of the book, The Complete Mediator. For a free consultation, please contact Mr. Parselle through his website: http://www.parsellemediation.com

Every mediated negotiation oscillates between doubt and certainty. Parties seek certainty even though very often they are besieged by doubts. People entering negotiations experience apprehension, which is another word for fear, though fear expressed at a low level of intensity. The reason they have come to a mediator is because they did not feel able to achieve a negotiated result on their own.

Therefore, a mediated negotiation is already, almost by definition, a negotiation which has either gone wrong or has never begun or which has a doubtful prognosis.

During the course of most people?s lives, they are negotiating at various times for various things and millions of negotiations are accomplished every day without the need for the intervention of an experienced mediator. Thus from the outset we see that a mediated negotiation contains elements of difficulty which have led the parties to be willing to spend money on the expert services of a professional in the particular field.

Generally speaking, a party must experience doubt in order to arrive at a mediated solution. The experience of doubt is uncomfortable. The experience of certainty is much more pleasant. People seek certainty in order to avoid the pain of doubt. A party to a negotiation has usually achieved a measure of certainty with regard to the position that they are taking, and that certainty which is a mental state is fortified and buttressed by all kinds of sorts, considerations, feelings, emotions, attitudes and arguments, all of which are themselves mental states.

However, the nature of a negotiation is that a mutually satisfied outcome can never be reached unless each party is prepared to change position. Such change involves movement from a well-fortified position into a position of doubt.

The process of moving from one position to another is mentally taxing, which is why the presence of a mediator can be of great help and comfort. As soon as the parties have arrived at a different position, they will dig in with all kinds of arguments and considerations, emotional ideas and attitudes, and they will gradually or rapidly achieve a degree of certainty about the new position that they have now assumed.

It may be necessary for the parties to move position many times before they reach the zone of possible agreement. That is why they must oscillate between certainty and doubt again and again, and that is why many people would rather resort to conflict, precisely because it is possible to enter a conflict without ever having to change ones? mind or experience the kind of mental tension that is involved in changing ones? mind.

Many organizations including government departments where the procedures for taking decisions are institutionalized and cumbersome, find it easier to leave the decision up to somebody else rather than go through the stress and trouble of taking decisions internally.

Many cases go to trial because one or other or both of the parties are simply unwilling to engage in the difficult task of negotiating a settlement. The task of the mediator, if such parties are willing to enter into mediated negotiation, is to help them overcome the internal barriers to achieving the changes necessary to avoid a third party outcome.

Of course, many times the reason a matter proceeds to trial or other conflict is because one or both of the parties have simply misread the situation in reality.

All negotiations have an internal and an external aspect. The internal aspect is the individual?s own subjective reactions to what is going on. The external reality is what the legal system is designed to deal with; in fact, the legal system is designed to squeeze out of the process all mental or emotional reaction and to delineate only the facts that can be adduced in evidence that are relevant, that is to say, that have a bearing on the legal issue presented to the court. But here as well, the mediator has a vital role to play, in being a sounding board against which the parties can test the reality of their own view of the situation.

Thus we see that parties may have a distorted view of reality, in addition to having inappropriate emotional attitudes to the problem. This is called the difference the real negotiation and the shadow negotiation, and the expert mediator needs to be expert in dealing with these different aspects.

In this way, the task of the mediator is more complex than the task of a court, which has had all the emotional side of it squeezed out by the rules of evidence, so that a dry problem can then be presented for a legal resolution. But such resolutions are often unsatisfactory to both sides, and they are always unsatisfactory to the losing side.

Although mediated negotiation is difficult, and often far more trying on the parties than a trial itself, nonetheless it has the exquisite advantage that it results in a solution arrived at by the parties themselves. Such negotiated resolutions are far more stable. They not only result in finality, but also in a release of emotional burden on both sides. They are thus a healing experience, and to this extent are a far more civilized and sophisticated method of resolving disputes than the legal system, which merely declares a winner and a loser.

Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford University?s Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. To consult him, please contact him through his website: http://www.parsellemediation.com

If only two persons attend a mediation and they are both have authority to settle, then only three negotiations take place. They are between (1) person 1 and person 2, (2) person 1 and mediator, (3) person 2 and mediator. The dynamics of this are easy to manage.

More commonly, at least four persons attend, namely two parties and two attorneys, in which case ten dynamic interactions may take place, as follows: (1) party 1 and party 2, (2) party 1 and lawyer 1, (3) party 1 and mediator, (4) party 1 and lawyer 2, (5) party 2 and lawyer 2, (6) party 2 and mediator, (7) party 2 and lawyer 1, (8) lawyer 1 and mediator, (9) lawyer 2 and mediator, (10) lawyer 1 and lawyer 2.

It is easy to draw a cats cradle to demonstrate the complex dynamics that exist in the above simple mediation, with only two parties each represented by an attorney.

If this was a dinner party with five friends, the conversation would be a free for all with everyone having a wonderful time. But a mediator cannot afford to have a free for all in a mediation session. A mediation is a negotiation, and every negotiation is (however politely or amicably conducted) an adversarial process. It is war waged with kisses. Further, most mediations take place within a larger context of adversarial relationships, or adversarial process such as potential or pending litigation.

If there are multiple participants, i.e. more than two parties and two attorneys in a mediation, the cats cradle becomes exponentially more complex, in fact, exceedingly complex. Such negotiations can easily get out of hand. It becomes all the more important for the mediator to set herself or himself as the focal point of all communications, and to control cross-table communications quite carefully, with as much finesse as possible.

No one attends a mediation without an agenda. Every persons agenda is different.

The mediator must control the flow of communication, or the negotiation will founder. That is why he was hired. With whatever subtlety or bluntness this is accomplished, it is essential. The mediator must be willing to shut off a destructive communication. He/she must also be willing to draw necessary communication out of participants who are keeping silent, even if this requires a private session.

The easiest way to control the dynamics of the situation, without attempting to stifle them, is to have the participants communicate with each other through the mediator. The slight deflection that this requires has an ameliorating effect on the language and the attitude of the speaker. As this is exactly what happens in court, attorneys are used to it.

There are only two kinds of communication in mediation. The first is any communication that keeps the negotiation moving towards clarity and settlement. The second is any communication that tends to torpedo, stifle or impede clarity and settlement. When bad communications occur, as they always do, the mediator must repair the damage and move on.

There are only two venues for a communication. The first is in joint session. The second is in private session.

Joint sessions are for participants to communicate positively such facts, attitudes, interpretations, arguments, and offers as will tend to move the parties closer to the goal of settlement.

Individual sessions have two purposes. The first is to permit participants to vent. Venting means to express negative thoughts and emotions about the other side. The setting in which such venting takes place must be controlled by the mediator in such a way as to advance, not impede, the purpose of settlement, and this means in private session. The purpose of venting is to get it said and done with. Some people take longer to vent than others. Some people never stop venting on their own volition, in which instance the mediator must make a calculated judgment when to call a halt to it. The second purpose of private session is to discuss what the participants will say in joint session, or what they want the mediator to convey to the other side.

Sometimes a participant wants to express his or her thoughts, emotions, feelings or attitudes directly to the other side. This is the side of mediation that is closest to therapy. The only reason to permit this is if it will advance the settlement process. How this is done is very important. There is a world of difference between on the one hand, explaining how one feels, and on the other hand, engaging in an ad hominem attack on another participant. This can be quite subtle. However much a person is coached, sometimes they just cannot resist turning an account of how they feel into a personal attack. There is a simple rule concerning ad hominem attacks: dont do it, because it never helps.

These issues do not always arise. Often, the volume and extent of these potentially explosive interactions is reduced or minimized by the parties themselves or their lawyers. Some lawyers prefer keep their clients out of the negotiations, keeping them on hand to ratify settlement proposals. Some parties do not want to take an active part in the proceeding, feeling that is what they retained an attorney to do for them. Also, attorneys often do not want their clients interacting directly with the other sides attorney. Some clients become terribly frustrated with the other sides attorney, seeing him or her as the supreme obstacle sometimes such a client takes the opportunity to call the other sides attorney a liar; the mediator should put an immediate stop to such fighting words.

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Every mediated negotiation oscillates between doubt and certainty. Parties seek certainty even though very often they are besieged by doubts. People entering negotiations experience apprehension, which is another word for fear, though fear expressed at a low level of intensity. The reason they have come to a mediator is because they did not feel able to achieve a negotiated result on their own.

Therefore, a mediated negotiation is already, almost by definition, a negotiation which has either gone wrong or has never begun or which has a doubtful prognosis.

During the course of most peoples lives, they are negotiating at various times for various things and millions of negotiations are accomplished every day without the need for the intervention of an experienced mediator. Thus from the outset we see that a mediated negotiation contains elements of difficulty which have led the parties to be willing to spend money on the expert services of a professional in the particular field.

Generally speaking, a party must experience doubt in order to arrive at a mediated solution. The experience of doubt is uncomfortable. The experience of certainty is much more pleasant. People seek certainty in order to avoid the pain of doubt. A party to a negotiation has usually achieved a measure of certainty with regard to the position that they are taking, and that certainty which is a mental state is fortified and buttressed by all kinds of sorts, considerations, feelings, emotions, attitudes and arguments, all of which are themselves mental states.

However, the nature of a negotiation is that a mutually satisfied outcome can never be reached unless each party is prepared to change position. Such change involves movement from a well-fortified position into a position of doubt.

The process of moving from one position to another is mentally taxing, which is why the presence of a mediator can be of great help and comfort. As soon as the parties have arrived at a different position, they will dig in with all kinds of arguments and considerations, emotional ideas and attitudes, and they will gradually or rapidly achieve a degree of certainty about the new position that they have now assumed.

It may be necessary for the parties to move position many times before they reach the zone of possible agreement. That is why they must oscillate between certainty and doubt again and again, and that is why many people would rather resort to conflict, precisely because it is possible to enter a conflict without ever having to change ones mind or experience the kind of mental tension that is involved in changing ones mind.

Many organizations including government departments where the procedures for taking decisions are institutionalized and cumbersome, find it easier to leave the decision up to somebody else rather than go through the stress and trouble of taking decisions internally.

Many cases go to trial because one or other or both of the parties are simply unwilling to engage in the difficult task of negotiating a settlement. The task of the mediator, if such parties are willing to enter into mediated negotiation, is to help them overcome the internal barriers to achieving the changes necessary to avoid a third party outcome.

Of course, many times the reason a matter proceeds to trial or other conflict is because one or both of the parties have simply misread the situation in reality.

All negotiations have an internal and an external aspect. The internal aspect is the individuals own subjective reactions to what is going on. The external reality is what the legal system is designed to deal with; in fact, the legal system is designed to squeeze out of the process all mental or emotional reaction and to delineate only the facts that can be adduced in evidence that are relevant, that is to say, that have a bearing on the legal issue presented to the court. But here as well, the mediator has a vital role to play, in being a sounding board against which the parties can test the reality of their own view of the situation.

Thus we see that parties may have a distorted view of reality, in addition to having inappropriate emotional attitudes to the problem. This is called the difference the real negotiation and the shadow negotiation, and the expert mediator needs to be expert in dealing with these different aspects.

In this way, the task of the mediator is more complex than the task of a court, which has had all the emotional side of it squeezed out by the rules of evidence, so that a dry problem can then be presented for a legal resolution. But such resolutions are often unsatisfactory to both sides, and they are always unsatisfactory to the losing side.

Although mediated negotiation is difficult, and often far more trying on the parties than a trial itself, nonetheless it has the exquisite advantage that it results in a solution arrived at by the parties themselves. Such negotiated resolutions are far more stable. They not only result in finality, but also in a release of emotional burden on both sides. They are thus a healing experience, and to this extent are a far more civilized and sophisticated method of resolving disputes than the legal system, which merely declares a winner and a loser.

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Closure represents the triumph of reality over illusion, recognition that things are the way they are, not the way we wish them to be.

A man has got to know his limitations. Clint Eastwood, Magnum Force

Settlement is a peace treaty declared on agreed terms. It represents the triumph of reality over illusion, rationality over expectation, calculation over emotion, and the cessation of conflict between parties who, in many cases, will go their separate ways.

Reconciliation is different from a peace treaty, and harder to achieve. It represents a collaborative harmonization of emotional needs and perceived realities, where the parties want or need to continue living in relationship with one another.

After the defeat of Hitler in 1945, Europe, for a thousand years the cockpit of war was utterly devastated. Yet today, twenty-five European nations with different languages, histories, and economies have achieved gradual reconciliation so thorough that today a general European war is not conceivable. Neither today can we conceive of California attacking Idaho, or Alabama marching on Ohio. Reconciliation is possible.

Some litigators are quite withering about mediation: I try my cases, they boast, a variation on the theme real men dont eat quiche. The reality is that these real men do settle their cases 96% of the time.

Without war we would have no word for peace, without peace no word for war; they are a dichotomy. The classical Greek word for the natural state of things was stasis, from which we derive the word static, but which to them meant perpetual conflict. The task of the mediator is a little more complicated than simply asking: Cant we all just get along?

The mediator has the task of maintaining the process between the parties, whether the goal is settlement or reconciliation, through convening, opening, communicating, negotiating, until the final step, which is closure.

It will be found that parties often negotiate to a short distance from each other, but the final step that each side has to make proves elusive. They are like a horses that gallop right up to a jump, but then screech to a halt, sometimes throwing the rider and as far as mediation is concerned, this is a moment when the whole process may blow up.

At this final stage, suddenly emotion may again take over, and the impulses of the ego thrust themselves forward. With only a small concession needed to achieve resolution, the desire to win, to score a victory over the opponent, to stick it to the other side, to achieve a tiny measure of revenge, reasserts itself.

How is a mediator to proceed? Some mediators talk about the dignity of being able to say No and walk away. Others take the view that the dignity of saying No is an insufficient reward to exchange for the benefits of achieving resolution. Such mediators see, in their minds eye, the parties as having entered the room with a great burden upon their backs, or a ball and chain around their ankle that with just a little more effort can be removed. Even if the parties, having settled, walk out of the room with some reluctance, which is called buyers remorse or sellers remorse, the buyer wondering if he took too little, the seller wondering if he paid too much, the match is over. The reason the parties chose mediation in the first place was to achieve that cessation. It is not just a matter of money, and certainly not a matter of ego. There is a great deal of time and stress, and waste of energy and resources, involved in disputes, so that the benefit the parties receive in the form of getting their lives back is a very important consideration.

You’ve got to know when to hold ‘em, know when to fold ‘em. Kenny Rogers

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Mediation is older than any legal system. The great Bacon wrote the praises of mediation nearly four hundred years ago, in one of his celebrated Essays:

It is generally better to deal by speech than by letter, and by the mediation of a third, than by a mans self . . . in all negotiations of difficulty, a man must not look to sow and reap at once, but must prepare business, and so ripen by degrees. Francis Bacon (1561-1626)

To mediate means:

1.To bring about (an agreement, peace, etc.), as an intermediary between parties by compromise, reconciliation, removal of misunderstanding, etc.

2.To settle (disputes, strikes, etc.), as an intermediary between parties: reconcile.

3.To effect (a result) or convey (a message, gift, etc.), by or as by an intermediary.

4.To act between parties to effect an agreement, compromise, or reconciliation.

5.To occupy an intermediate place or position.

6.Acting through, dependent on, or involving an intermediate agency; not direct or immediate.

Mediation means:

1.Action in mediating between parties, as to effect an agreement or reconciliation.

2.International law, an attempt to effect a peaceful settlement between disputing nations through the friendly good offices of another power.

Synonym(s):

1.Mediation, arbitration designate processes for bringing about agreement for a reconciliation between opponents in a dispute. Mediation implies deliberation that results in solutions that may or may not be accepted by the contending parties: mediation settled the strike. Arbitration involves a more formal deliberation, it being understood that the results will be binding on the contending parties: the strike was settled only after arbitration.

(All definitions are reproduced from Websters Encyclopedic Unabridged Dictionary of the English Language)

Websters synonyms tend to confuse mediation with arbitration. Arbitration is designed to produce a result with a winner and a loser; it is a not a process for bringing about agreement for a reconciliation. Mediation unlike arbitration is not designed to produce winners and losers, but precisely a reconciliation of differences. Mediation attempts to be win-win. They are both alternative dispute resolution mechanisms, but one bears little resemblance to the other.

Webster does accurately state the role of mediator as intermediary between parties to a dispute. Mediation is as old as civilization and pre-dates anything resembling legal process. The mediator is a go-between, who passes busily from party to party in an attempt to assist them reconcile their differences. In late classical Athens, the comedies of Menander often featured a wily slave who carried messages, and in the country house farces beloved of Victorian audiences, the chambermaid often served as an intermediary between two lovers. The Aztecs, who had no written language, used messengers or intermediaries to convey exact messages of outstanding length. Carrier pigeons have been used to carry messages for hundreds of years, and can navigate over endless uncharted miles, but so far no carrier pigeon has become a mediator.

Though a mediator may lack some of the abilities of a carrier pigeon, she can and does carry messages, but that is the least of her functions. She is a trained professional who has the skills to overcome numerous obstacles, the perseverance to continue the process despite all impulses of the parties to end it, and who is able at length to bring them to closure of the particular dispute despite their differences, and sometimes achieve a full reconciliation. Such results are not easily achieved, and such skills are not easily learned.

The textbooks say that there are three ways to mediate, or three types of mediator. These are 1) evaluative 2) facilitative 3) transformative.

An evaluative mediator is one who is prepared to express an opinion as to the likely outcome of a dispute. Parties who seek an evaluative mediator will often choose a retired judge. The prerequisite for giving an evaluation is subject matter expertise. Judges, who have decided hundreds or thousands of cases, or who have observed hundreds of juries reaching a verdict, are often trusted by parties to render an evaluation, which the parties may find useful in coming to a decision about their particular dispute. However, not only retired judges are used for the purpose of evaluation. Persons engaged in a construction dispute will often go to an engineer, general contractor, or other person with subject matter expertise.

A facilitative mediator is one who stresses that the function of his job is to enable, or facilitate, parties to communicate and negotiate with each other, in order to arrive at their own evaluation and resolution. A facilitative mediator may consider it unethical to render an opinion. The facilitative style may require greater patience and skill in enabling parties to craft their own resolution, than may be necessary for an evaluative mediator. Parties may prefer an evaluative mediator when they wish to resolve their dispute and proceed on their separate ways. Facilitative mediation may be more desirable where the parties wish to, or must, engage in a continuing relationship with each other, so that the particular dispute is merely a roadblock that needs to be overcome in order to enable that continuing relationship.

Many mediators are perfectly willing to be either evaluative or facilitative, as the situation demands.

The third type of mediator is called transformative, and the goal of transformative mediation is far bolder, and more like therapy, than the goal of traditional, evaluative or facilitative mediation. Transformation suggests that the goal is to affect a transformation, in the parties themselves, and in their relationship. Transformation means (1) act or process of transforming; state of being transformed. (2) Change in form, appearance, nature, or character. (3) Theatrical, a seemingly miraculous change in the appearance of scenery or actors in view of the audience.

In Mediating Dangerously, (2001) Kenneth Cloke, a pioneer of transformational mediations, writes:

The transformational or elicitive model of mediation views conflict as something to be learned from, and the parties as ready for introspection and fundamental change. The mediator becomes an empathetic yet honest agent, whose role is to elicit recognition and empower the parties to solve their own problems. Personally I use a modified version of the transformational model, based a more intuitive, integrative, dangerous approach to mediation. I neither direct nor stand apart from the conflict, but interact with the parties and reflect on possibilities, based on intuitive assessments at the time.

The function of a mediator is to enable change. A mediator is a catalyst whose presence and skills enable change. The type of change so enabled is the most difficult of all change of mind.

Change is needed for movement to occur. Movement is needed for the disputants to approach each other. The disputants must approach each other for negotiation to occur. Negotiation must occur for solutions to be explored. Solutions must be explored for the disputants to achieve a resolution that satisfies competing interests.

At some level, disputants cherish their dispute, and the emotions and attitudes that accompany it they want to lay down the burden yet are reluctant to do so. They want the satisfaction that accompanies winning. They want not merely to win; they want to other side to lose, and preferably be manifestly seen to lose.

When an outsider hears both sides of a conflict, she may get the impression that the disputants are in illusion, the competing illusions colliding in conflict. One or both of them has got it wrong. If both sides are brought to share roughly the same reality, or view of the case, they settle. This is called by many colloquial expressions, like getting into the same ballpark, getting into the same zip code, etc. The presence and skills of the mediator tilt the balance in favor of reality, rationality, and closure.

The three bedrock principles by which mediation is conducted are (1) confidentiality (2) voluntary participation and (3) party control of outcome.

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