by Laurie Israel, Esq.
Published in mediate.com, March 2015
During the past quarter century, academics and others writing about mediation have characterized styles of mediation as belonging to one of three categories: “facilitative”, “evaluative” and “transformative”. The categories are quite clearly defined.
Facilitative Mediation.
“Facilitative” mediation (the original type which started to be broadly practiced in the 1960s and 1970s) involved a process designed to help clients come to agreements. Often this was practiced in volunteer mediation organizations dealing with small business or “neighbor” disputes. The mediators tended to be trained in mediation, but not generally trained in substantive knowledge of the area they were mediating.
Facilitative mediation has matured so that mediators are now not only trained in mediation, but often are familiar with the substantive law pertaining to the dispute that is the subject of the mediation. Facilitative mediators range in their views as to how important the substantive “law” is to mediating a dispute.
Facilitative mediators use standard mediation practices such as finding the interests behind the parties’ positions, reframing, active listening, validating points of view, defusing “hot” speech and helping clarify communication misunderstandings.
Facilitative mediation is goal oriented, the primary goal being for the parties to come to agreement. Traditionally, attorneys are not present during the mediation sessions. Sometimes there are “caucuses” in which the mediator might meet separately with one or the other party.
The clients make their own decisions, with the mediator “facilitating”. The mediator structures the process, and leads (sometimes very subtly) the parties towards resolving their disputes. The facilitative mediator does not give advice, nor does he or she intersperse the mediator’s own views into the mediation.
Evaluative Mediation.
The second type of mediation is called “Evaluative” mediation because the mediator’s role is to evaluate the dispute presented to him/her through the lens of existing law. This mediator sifts through the “facts” of the dispute and seeks to predict how the dispute would be decided by a judge or jury if brought to court.
Often evaluative mediation is entered into after a court case is in progress. Attorneys are usually present. Caucuses in which the mediator might meet separately with one or the other party are frequent. In fact, at times the parties never meet face to face, and the mediator goes from room to room, practicing what is called “shuttle diplomacy”. The goal is to get the litigating parties to come to agreements using the mediator’s evaluation of the relative strengths or weaknesses of party’s lawsuit to encourage parties to come to settlement.
Transformative Mediation.
The final theoretical type of mediation is “Transformative” mediation. The definition of this type of mediation was formulated by Joseph Folger and Robert Bush in the early 1990s. Both Folger and Bush are academics, Folger now at Temple University; Bush at Hofstra University School of Law.
Folger and Bush theorize that mediation has the potential to effect deeper changes in people than just resolution of specific disputes. It has the capability to transform, not only the relationship between the parties, but even the character of the individuals involved.
According to Folger and Bush’s construct, the key to this transformative change in mediation is “empowerment” and “recognition”. Empowerment here is used in the sense of a person’s power to make his or her own decisions. A person is empowered through gaining clarity about goals, resources, options, and preferences. The person uses this information to make his/her own clear and deliberative decisions during the mediation process. “Recognition” is considering, acknowledging, and having empathy for the other person in the mediation.
The mediator’s focus is to look at the parties’ interactions, and identify opportunities to assist the parties in gaining “empowerment” and promoting “recognition”. The process is open-ended, unlike facilitative and evaluative mediation. The goal is not necessarily towards “settlement” – settlement is presented as one possible outcome.
Where does Marital Mediation fit in?
Is marital mediation (mediating disputes between married couples) facilitative, evaluative, or transformative?
First of all, like all mediation, marital mediation styles will depend on the personality, skills, preferences, and background of the mediator. Mediators come from all walks of life, and with varying experiences and trainings. Mediators are not generally locked into one of the three categories. Every mediator will do his/her job differently and most combine mediation strategies to seek to make the mediation effective. Mediation, in that sense, is more like an art than a science.
Most of what marital mediators do falls under the category of “facilitative” mediation. However, in marital mediation often the mediator is not as concerned with helping parties get to an agreement, as with promoting understanding. In contrast, in divorce mediation, the goal is to come to the many specific agreements needed to complete a comprehensive divorce settlement agreement. As a result, divorce mediation has a specific goal and may be faster-paced.
In a marital mediation, the parties are not getting along in certain aspects of their relationship. Often this discomfort and anger has spread over to their entire relationship making their interactions quite corrosive. Getting them to have one agreement on a troublesome issue may be helpful, but facilitating mutual understanding is generally more important. That is why in marital mediations, a written agreement often does not result from the process.
In a marital mediation, a couple need not solve all of their problems. There might be only one issue worked on, and when there is resolution of that issue, the parties are able to solve other issues by themselves, and the ongoing relationship improves. So in a sense, the process is “transformative” because the mediation has transformed the marriage.
Sometimes there might be elements of “evaluative” mediation in marital mediation sessions – particularly if the mediation clients are close to divorce and want to know what the terms of a divorce might be in their factual situation. In these types of marital mediations, the clients may wish to enter into a postnuptial agreement to clarify their positions and relieve the stress of uncertainty in connection with financial issues that are troubling them.
Unlike in “facilitative” mediation and “evaluative” mediation, caucuses in marital mediations are discouraged. Caucuses involve “secret” messages to the mediator that can become very awkward and destructive to the marital mediation process. In marital mediation the point is to make all lines of communication clear.
The Folger and Bush ownership of, and construct around the term “transformative” in “transformative mediation” is problematic. They have essentially co-opted the general term “transformative” to mean a mediation based on “empowerment” and “recognition”. This puts a conceptual straightjacket on other forms and blends of mediation that both clients and mediators feel are “transformative”, within the generally accepted meaning of that word.
Many marital mediators who primarily use “facilitative” mediation, find that helping married couples solve disputes through standard mediation techniques and clarifying longstanding misunderstandings is “transformative” for the clients. A couple that stops arguing about something (with the help of a mediator) has learned something important about their interactions – and perhaps themselves — that they can apply to other situations. This can be transformative to them.
And one could say all effective marital mediation is transformative, whatever method of mediation is used. Forcing “transformative” mediation to be based on Folger and Bush’s construct of “empowerment” and “recognition” is too limiting.
John Fiske, a Massachusetts mediator, talks about the essence of spousal conflict being caused by issues relating to “control” and “acknowledgment”. Although these terms seem similar to Folger and Bush’s “empowerment” and “recognition”, the first prong of Fiske’s construct is quite different.
Fiske, like Sharon Strand Ellison in Taking the War out of our Words: The Art of Powerful Non-Defensive Communication (1998, 2007), http://www.pndc.com/ believes that power struggles between spouses is the central theme of most marital conflicts. Fiske encourages couples in marital mediation to look at their behavior in terms of power and control, because when you scratch the surface, that is what they are generally arguing about. Fiske also posits that lack of respect or acknowledgement of the other spouse’s actions and views, aside from being usually not fact-based, is a destructive element in a marriage. Acknowledgement encompasses being heard, understood, and respected. A mediator working with the issues of “control” and “acknowledgement” in a marriage can help a couple greatly.
I find Fiske’s construct of “control” and “acknowledgement” more useful in my marital mediations than the Folger/Bush construct. To see how Fiske’s construct plays out in the context of typical spousal disputes relating to driving automobiles, see my PowerPoint entitled “Driving your Spouse Crazy — Literally”.
Unlike facilitative (and evaluative) mediation, the Folger/Bush model of transformative mediation allows and even encourages the parties to express emotions and bring up discussions of past events. Marital mediation is more like “facilitative” mediation in that respect, in that emotions and past events are generally (and intentionally) excluded from the mediation. This is also one of the differences between marital mediation and marital therapy or marital counseling. In the latter, emotions and past events are often explored and used to help a couple improve their relationship.
Marital mediation is fact-based, communication based, and focused on the present and future. But even though the mediation does not focus on past events, and personal and family histories, in a successful marital mediation, the result can be seen as “therapeutic” in the sense that if a marital conflict is lessened, the parties feel better about each other and their marriage.
Marital mediation is similar to “transformative” mediation in that it is open-ended. Parties may come to the mediator with a specific dispute, but more often they come with many disputes. Taking time to solve one of them, and not forcing a solution or agreement to a particular problem in one session is extremely helpful to marital mediation clients. Since coming to “an agreement” is not primary (but coming to understanding is), marital mediation is slower-paced than facilitative mediation, but in general, clients will use a similar number of mediation sessions in all.
Where does marital mediation fit into the construct of “facilitative”, “evaluative” and “transformative”? It has characteristics of all of these, as well as John Fiske’s construct of “control” and “acknowledgement”, depending on the situation, the mediator’s preference, experience and style, and the clients’ needs and visions for what the marital mediation should accomplish.
© 2015. Laurie Israel. All rights reserved.
on both prenuptial and postnuptial agreements. She works as a consultant and mediator
nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative
law, estate planning, probate of estates and trust administration, as well as mediation and, in
Massachusetts, providing counsel for couples entering into prenuptial agreements. Laurie is
one of the initial practitioners and developers of the field of marital mediation, the practice of
using mediation to help couples solve marital problems and improve their marriages. Laurie is a former board member of the Massachusetts Council on Family Mediation and the
Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation,
marital mediation, and prenuptial agreements. You can find her articles on www.ivkdlaw.com,
Huffington Post, and Mediate.com. She is the author of the book “The Generous Prenup: How
to Support Your Marriage and Avoid the Pitfalls,” available on Amazon. Laurie is frequently
called upon by attorneys and mediators to share her expertise, through giving both formal and
informal presentations, on the subject of prenuptial agreements all across the country. You can
contact Laurie at laurie@laurieisrael.com. Her website is www.laurieisrael.com.