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Posted on: Mar 4, 2016
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Transformative vs. Evaluative Mediation


By Elodie Meuser, The Mediation Option

In this article, the author explores what he feels are the shortcomings of evaluative mediation. He is a proponent of transformative mediation: mediation in which the parties’ relationship is “transformed” or changed. The proponents of transformative mediation argue that this type of mediation empowers each party to the dispute to define their own issues, rather than the mediator directing the parties to each issue. Further, it provides each party with a recognition of and an understanding of the opponent’s side of the dispute, i.e. each party’s needs and wants, feelings and desires are explored. In turn, the mediation will result in a “better” mutual agreement by the parties who will continue on in their relationship with each other, or at the very least, transform each party’s relationships in the future with other persons or entities. The author questions: “So why does evaluative mediation persist?” I think the answer may be this: because it is valuable.

Generally, I assume that before parties and their attorneys come to mediation, they have made some attempt at negotiating a resolution. And I assume that because they are coming to mediation, that attempt has failed. I also hope that the attorneys will inform me as to the reasons why that attempt at a negotiated resolution has failed. And when they do, more times than not it is because at least one party has unreasonable expectations. Therefore, it is my job as a mediator to provide a “reality check” to each party by evaluating the strengths and weaknesses of their position. While I am certain the attorney has already explained this (or at least should have, in my opinion), it will sound different coming from me.

While I do see the value in transformative mediation, I do not believe it is applicable in every situation. For instance, a couple without children that is divorcing and arguing over debts and assets may not need transformative mediation because after they are divorced, their relationship will come to an end and they will likely never see each other again. While I am all for empowering each party to make educated decisions, in instances such as these, transforming relationships is not a priority.

Perhaps the best approach, in the end, is a hybrid approach, using both transformative and evaluative mediation. I’ll ask the question too: “What do you think?”

This post was written by Elodie Meuser, The Mediation Option. If you would like to submit content or write an article for the ADR Section page, please email Rachel Beachy at rbeachy@indybar.org.

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