The main objective of the present dissertation is to observe the impact that different mediation models have on the mediation process.
The principal reason for focusing on this question is to verify the impact that the “structural arrangements put in place by the mediator to realize the mediation process” have on the latter. In order to achieve this goal, the first chapter will explain the concept of mediation and its process. The second chapter will bring in the Bromley Model, while the third will analyse the model adopted by John Haynes. In each model it will be explained how the mediation is structured, the way in which the professional meets the parties, the mode in which communication is established between the participants, the kind of summary made by the mediator during the session, and the technique deployed in order to achieve the dispute resolution.
In the final chapter, through the comparison of both models, it will be reached a conclusion regarding which characteristics that, in being adopted by the mediator in a model, have a positive effect on the development of the mediation process and enables it to reach its maximum effectiveness. Indeed, the goal of the present paper is to help to show which mediation features present in the studied models are the most benefitial for the participants and help the mediation process to accomplish its purposes in the best manner possible.
Mediation is one of the most antique and omnipresent ways of dispute resolution all around the world. Since people have had disagreements between them, mediators have advised the utilization of reason over violence, the advantages of give-and-take over judgment. Even though it is an old institute, solely in the last fifteen to twenty years mediation has assumed the role of a formal category of dispute resolution in a large range of social fields.
Mediation takes place when two parties cannot agree into a solution for a dispute and then a third person intervenes in order to enhance the communication, facilitating an agreement between them.
According to J. M. Haynes:
“Mediation is a process in which a third person helps the participants in a dispute to resolve it. The agreement resolves the problem with a mutually acceptable solution and is structured in a way that helps maintain the continuing relationships of the people involved. “
In fact, there is mediation when a disinterested, non-aligned third person, eases the communication interchanges between the disputants and, by acting like this, conduces to the parties to reach a decision that is agreed between them, as M. Roberts teaches.
It is possible to see two principal features that set apart the mediation process: there is a third part and this third part is not a partisan. Regarding it, S. Roberts and M. Palmer state that
“In the large and varied literature on ‘mediation' two common threads remain visible. First, mediation is identified as a form of third-party intervention supportive of negotiation. So the mediator's primary role involves facilitating other people's decision-making; the mediator sustains, revives and initiates negotiation. (...) Second, it is seen as going to the essence of the mediator‘s role that he or she is not directly aligned with either party. In other words, the mediator may be contrasted with the partisan, even if he or she is not perceived as ‘neutral' or ‘impartial' by both sides.”
In the same line, G. Simmel says that the most important characteristic of the mediator is that he is not a partisan:
“The non-partisanship that is required for mediation has one of two presuppositions. The third element in non-partisan either if the stands above the contrasting interests and opinions and is actually not concerned with them, or if he is equally concerned with both.”
The mediator can either provide the connection through which the negotiation process can occur, or actively seek to decrease differences between the parties, according to Simmel. It is essential to notice that mediation cannot be confused with arbitration. While the arbitrator has power to make decisions, it is not part of the mediator's duties to make decisions. In fact, in the mediation process, are the parties who have the control over the outcome. M. Roberts writes “The values of mediation have exemplified, above all, a fundamental ethic of respect, for the parties' autonomy and for their authority to make their own decisions.”
“The mediator has neither a stake in nor authority to impose an outcome on those parties. The non-determinative nature of the mediator's authority and a non-partisan alignment within the parties' negotiations are recognised to be the two cores characteristics of a mediator's role and function.”
Consequently, the distinctive aspects of the mediator's role are: first, the mediator is a non-partisan, and, secondly, the mediator is not invested in authority to take any decision. Instead, the power to make decisions lies on the disputants. As S. Roberts and M. Palmer write, mediators are ‘taking responsibility for process, thus assisting embattled parties to reach decisions on the substance of the issues between them.'
It is important to stress out that, according to P. H. Gulliver, any view of the professional as ‘neutral' should be put in perspective., Gulliver defends that the ‘truly disinterested, impartial mediator is in fact rather rare' because the mediators can have an important interest in the resolution of the dispute, or be more inclined towards the interests of one participant.
Resuming the fact that mediation is a type of negotiation marked by the intervention and the guidance of a mediator, in order to fully understand the subject, first it is going to be shown how the negotiation operates.
The Negotiation Process
S. Roberts and M. Palmer conceptualise negotiation “as a cyclical process of information exchange and learning”. They brilliantly explain:
“The features of negotiation are revealed most clearly in simple, bilateral exchanges in which information flows in both directions, understanding is achieved and an outcome is reached (...) So negotiation involves communication, leading to joint decision-making. It is a process over which the parties retain control; exchanges take place within a common universe of meaning; and these determine the outcome in immediate terms. Here the ultimate contrast is with acquiescence in an adjudicatory process in which power over the outcome lies with a third party.”
Gulliver says that the principal factor that distinguishes negotiation is the absence of a third-party decision-maker. He adds that the solely possible outcome is that to which both parties agree (‘joint decision') and that each party considers that, in view of the circumstances, the decision taken is the most satisfactory.
Roberts and Palmer teach that many conditions have to be present in order to a negotiation take place and explain them. According to the writers, first, it is necessary to find a medium of communication that will enable messages to pass backwards and forwards between the parties. Second, both parties have to express and effectively communicate to each other which are their objectives, in other words, what they expect to reach in the exchange. Once the goals have been actually understood, the next condition is that the parties must examine and evaluate the options that are available to them. The authors say that, in certain cases, due to a greater understanding propitiated by the exchange of information, it is going to be verified that actually there is harmony in the aims of the parties and, therefore, an agreed outcome is possible without demanding concessions. However, if there is incompatibility of goals and, in spite of this, the parties still want to pursue an agreed solution, the outcome will be achieved through other exchanges in which the parties will have to bargain and compromise.
They continue and affirm that is indispensable to bear in mind that to present negotiation ‘as a bilateral process of decision making, reached through information exchange and learning', is a simple form.
The Processual Shape of Negotiation
Roberts and Palmer say that the negotiation is marked not only by the referred conditions but also by a usual, fundamental format (that connects the indispensable prerequisites to the occurrence of the negotiation and sets up the shape assumed by consecutive, progressive stages in the negotiation process.)
After stating that some authors have tried to formulate a ‘developmental process model, identifying the phases trough wihch negotiations must pass if they are to reach an agreed outcome', the referred writers opt to look into the eight-phase processual model that was developed by Gulliver. In the present work, we are going to follow the study of Gulliver's model, subejct to the comments made by Roberts and Palmer. Gulliver says:
“In negotiation there are two distinct though interconnected processes going on simultaneously ... a cyclical process comprising the repetitive exchange between the parties, its assessment, and the resulting adjustments of expectations and preferences; there is also a developmental process involving the movement from the initiation of the dispute to its conclusion- some outcome – and its implementation.
The model of the developmental process ... comprises a series of overlapping sequences of phases, each with its peculiar emphasis and kind of interaction and each opening the way for the succeeding one in a complex progression. Summarily, these phases are (1) the search for an arena for the negotiations; (2) the formulation of an agenda and working definitions of the issues in dispute; (3) preliminary statements of demands and offers and the exploration of the issues, with an emphasis on the differences between the parties; (4) the narrowing of differences, agreements on some issues, and the identification of the more obdurate ones; (5) preliminaries to final bargaining ; (6) final bargaining; (7) ritual confirmation of the outcome; and, in many cases, (8) the implementation of the outcome or arrangements for that (1979:82).”
Each of the mentioned phases will be analysed under the light of the lessons of Roberts and Palmer.
Regarding the arena, so that the process of information exchange and learning (that can lead to a mutually agreed decision) takes place, the parties first will need to find enough common understandings that permit the establishment of a conversation and will also need a medium of communication that allow messages to pass backwards and forwards between them. The arena may be (even though it may not be as well) a physical place where the parties meet. For the developmental process, an arena should be regarded as constituted whenever there is a passage of messages between the parties, and the messages receive attention and draw out response. When the parties remain at distance, the essential arrangements can be made via post or electronic mail.
After the means in which the communication is going to occur have been established, a second stage is reached. In this new level, the issues are identified. Each of the parties expresses and communicates the issues their own view. This enhances the increase of a shared definition and comprehension of the dispute. Sometimes, the parties may realise that actually there is no disagreement between them. Instead, there were misunderstandings and communication difficulties. If that is the case, the negotiation will be over. However, if there are issues that demand a solution, it is necessary to structure an agenda, so that the negotiable issues can be ascertained, and then ordered and prioritised.
Subsequently, the parties explore the boundaries and verify how vast the limits within which the negotiations can go are. At this stage, the parties can exhaust their demands and manifest their most antagonistic divergences. Consequently, it may be permeated by conflict and hostility.
A moment of diminishing the differences follows. During the earlier stage, the parties had the opportunity to perceive and comprehend the extent of the feud between them and, thus, could envisage the paramount points of discussion and the latent options. This scrutiny may show to the parties either a solution that is satisfactory to them or that the continuance of the exchanges will be a vain attempt. In both situations, the negotiations are concluded.
In the case that the parties agree regarding the main issues, but still there are differences concerning secondary points and, therefore, adjustments are demanded, it is possible to address the problem through further exchanges. In accordance with Gulliver, before the ‘final bargain', frequently a prior phase takes place. In this previous stage, emphasis is given to preliminaries related to ‘the search for viable bargaining range, the refining of persisting differences, the testing of trading possibilities, and the construction of a bargaining formula.' It is important to stand out that these are not indispensable for a favourable outcome, though.
For Gulliver, bargaining is ‘the exchange of more or less specific, substantive proposals'. As a rule, the modification of the position of the parties occurs in one of two manners, as Roberts and Palmer state. In the first, the most empowered party keeps on postulating his or her demands in a repetitive and persistent way. In view of the pressure exercised by the stronger party, the weaker party is compelled to change his position, to compromise. In the second manner, both parties alter their initial positions and make concessions. In this way, they can conceive a result that is mutually acceptable.
It is important to point out that negotiations may finish in a situation so difficult that no progress can be made (deadlock). The parties will then carry further their quarrel in other ways. However, if a solution is attained by mutual consent of the parties, almost always happens a final phase in which accord is ritually manifested.
Even though the struggle to enforce the agreement achieved through negotiations is pointed as a problem of bilateral negotiations as a form of decision-making, this worry is overstated, in conformity with Gulliver and Roberts and Palmer . The latter authors say that because both parties are aware that a consensual agreement is the best option available to them, they would commit themselves to follow the agreed terms. This would make the accordant agreement self-enforcing.
Second Gulliver, in practice, the stages of the negotiation may superpose and not follow a rigorous sequence. For this reason, he says, it is important to pay attention not to unrelentingly demand a quite orderly and coherent model.
Roberts and Palmer state that Gulliver's model has been adopted as the foundation of practice in current mediation programmes. They endorse the model, even though subjected to two minor conditions. The first one is to treat the preliminary identification of issues and the formation of an agenda as two separated phases, even though they are obligatorily consecutive. Since the primary formulation of each party will present diverse aspects and the level of a performance, they will demand hearing and acknowledgement. Indeed, to condense the two or further postures involved into an agreed agenda for discussion implies into a considerable transformation and represents a line that many incipient negotiations do not succeed to pass over. The second condition brought by the authors is that the agreement, understood as the outcome, appears to be apprehensively placed between the stages of ‘final bargaining' and ‘ritual affirmation', in Gulliver's model. It is relevant to notice that, in various negotiations, there is an ample quantity of work between the initial recognition that there is an agreement and its final framing. This complicated period requires recognition as a proper phase. However, it is necessary to acquiesce that, in the final moments, the instrumental and demonstrative expressions can be inseparable of the final act. If this is the case, they not only mark but also validate the new situation, according to the writers
Briefly, in accordance with and Roberts and Palmer, the phases of the negotiation would be: 1-) search for an arena; 2-) identification of the issues; 3-) formation of an agenda; 4-) exploration of the limits; 5-) reduction of the differences; 6-) preliminary bargaining; 7-) final bargaining; 8-) agreement; 9-) ritual confirmation; and, in several cases, 10-) implementation of the outcome or preparations for that.
The Mediation Process according to John Haynes
In conformity with John Haynes, the generic process of mediation is composed by nine stages: 1-) recognition of the problem, 2-) choice of the arena, 3-) selection of the mediator, 4-) gatherer of the data (fact finding), 5-) definition of the problem, 6-) development of options, 7-) redefinition of positions, 8-) bargain, and 9-) draft of the agreement.
The stages of the mediation process presented by John Haynes have similarities with the already mentioned negotiation phases brought by Gulliver. One paramount, although obvious, inequality is the fact that in the mediation there is a stage in which the mediator is chosen. ‘Selection of the specific mediator is based on the clients' knowledge of the process, the reputation of the mediator, and the extent to which other professionals refer cases to the mediator.' The other fore mentioned stages of the mediation process proposed by Haynes are also going to be expounded on the light of the author's understanding.
Concerning the recognition of the problem, Haynes, utilizing the teaching of Gulliver, asseverates that ‘Negotiations can take place when the parties to a dispute recognize that they have a dispute, agree on the need to resolve it, and actively engage in the process designed to settle the dispute.'
Consequently, so that mediation takes place, it is indispensable that both parties recognize the existence of a dispute and engage in the mediation process. If one party does not assent that he is in a dispute, to the other person will remain only one option- to transform the conflict into a legal dispute.
In relation to the choice of the arena, once the parties accord that it is necessary to resolve the quarrel, they need to opt for the adequate means. They select an arena in which to terminate the dispute. In these circumstances, they pick out mediation. Mediation has increasingly been chosen as the arena in which to resolve disputes because it is non adversarial (in opposition to the legal system, in which the participants are adversaries), it is private (interpersonal conflicts are best resolved in private; in opting for a mediator, the outside intervention is usually restricted to one professional, even though some mediators like to work in teams), it is cheaper and it is faster.
The fact finding is the commencement for the professional. He starts by gathering the data regarding the character of the dispute, the disputants' views of the conflict, as well as any other important information.
The gathering data phase enables the participants to both elucidate the bargaining issues and gain comprehension of each other's posture referring to the issues. Previously to these discussions, each client has almost neither considered what the other wants nor tried to comprehend what the other needs. Instead, each focuses on making his own argument plausible. Hearing the other's point of view and the data with which the other contributes to the mediation allows the participants to evaluate their own position in a more realistic manner. According to Haynes' view, the mediator needs to take a firm stand on the whole revelation of all issues and facts to the participants. The writer justifies his position saying that when the mediator employs the process to guarantee the uncovering of all the available information, the professional is: empowering the parties that hold less knowledge; making certain that each party utilizes the same data in order to determine the problem; and enhancing the capacity of every party to opt for the alternatives that are the most advantageous to them.
Availing himself of the shared information, the mediator assists the disputants with the definition of the problem. It is indispensable that the problem is delineated in such a form that it does not confer advantages on any person over the others. It needs to be a common delimitation of the problem.
Subsequently to the accordance of all the participants on the specification of the problem, the mediator aids them to give rise to alternatives to extinguish the dispute. These alternatives are usually mutual.
Several times the parties are in dispute merely because they are not aware of choices for solution. In such situations, the mediator assists the disputants to enlarge the range of alternatives using the brain-storm.
When entering the mediation process, every party has an initial position since it is included in their definition of the problem. However, positions not always correspond to the participant's self-interest as long as they are generally adopted in emotional circumstances. The majority of people bargain from positions instead of interest. Bargaining about positions, however, brings about deadlocks. Haynes, using the teaching of Fisher and Ury, says that the mediator aids the disputants to bargain taking in account their self-interest. In the beginning, the professional disregards the positions presented at the commencement of the session and assists the parties to employ the ‘rational process of problem solving' in order to ascertain their real self-interests. The latter then form the structure of their successive bargaining. They do it through the choice of the most favourable alternatives available to them.
Once the positions have been converted into interests, the disputants are prepared to opt for the alternatives that appear to present the most advantages and, concomitantly, to imply the least cost to parties. When the parties choose options, they assume acquainted positions that are supported on self-interest conducting to the bargaining stage of the negotiations .
In the bargaining time, the participants are helped by the mediator to ‘negotiate over the choice of solutions so that the agreement is acceptable to all involved. In this stage positions are modified, options are traded, and the give-and-take of the bargaining occurs.'
Participants can bargain solely when they have fully knowledge of the facts; an adequate common definition of the dispute; a range of alternatives to terminate the dispute; and one or more alternatives as their principal purpose.
The mediator is in charge of drafting a ‘memorandum of understanding (MOU)' explaining in detail what was agreed by the participants. The MOU contains, still in accordance with the quoted writer, the background information; the definition of the dispute; the alternatives chosen, as well as the motivation for the choice; and the goal of the agreement. The mediator should give one copy of the MOU to each party.
The Cycles of Mediation Process
In the words of Haynes, each mediation is formed by ‘the generic process plus unique parts, depending on the context. Those parts unique to the context are also made up of the same cycle of the mediation process.'
The writer explains that the cycle is composed by the five phases that are in the middle of the generic process (the latter was expounded on page 8), in other words, it includes the following stages: gathering the information (fact finding); definition of the problem (based on the data gathered); development of options to resolve the dispute; redefinition of positions from the perspective of self interests to the perspective of mutual interests; and bargaining over the alternatives in order to achieve a common agreement.
Each time that a specific issue is dealt with, the cycle is retaken within the greater mediation generic process.
Now that the indispensable background was set (the concept and the process of mediation have been explicated), it is possible to start to address in detail the Bromley and John Haynes Models of mediation.
The Bromley Model
The Bromley model refers to the manner in which the SE London Family Mediation Bureau (located in Bromley and, thus, giving origin to the name) structures the mediation . This model has its roots on the Coogler Model of Structured Mediation.
According to Marian Roberts, the Coogler Model presents two main characteristics. The first is that the structure clearly governs main issues related to the autonomy of the parties, the power and authority of the mediator, as well as the safeguard of a fair
process. She explains that Coogler points out the relevance of a well defined structure formed by the conjunction of three structural elements: ‘the Procedural, Value and Psychological Structures, designed to protect the partisans procedurally (to secure an orderly process), ethically (to secure a fair process and ethical standards of exchange) and emotionally (to secure psychological and physical safety).'
The second feature, according to her, is the way in which the issues are dealt with, specifically the emphasis on the mediator's “modest” figure and on the utilization of the structure. The issues are restrained to those that obligatorily demand solutions so that an agreement can be achieved. The role of the mediator consists in guaranteeing that the parties are responsible for taking the decisions. Prior to the initiation of the discussion of the issues, the disputants agree on obey procedural “rules” and guidelines set by the mediator.
One feature that distinguishes the Coogler model is the fact that, at an initial stage in each session, the mediator spends a time with each of the partisans separately, in accordance with Marian Roberts . The other is the stimulation to direct negotiation between the parties, as the teaching of the writer .
The author still says that, originally, the Bromley Model was used solely for mediation on children issues, even though Coogler adopted it on any family issue. After explaining that her illustration of the model is based on disputes in relation to children, the writer describes how the session is structured.
The session in general has duration of until two and a half hours. In the end of the meeting there is agreement of the parties upon some (or even all) points included in the agenda, frequently on a provisional, experimental basis, to be re-examined in mediation subsequently to a stipulated period of time. In such situations it is uncommon that more than three sessions take place. Each session of the mediation process is organized in four progressive phases.
The first stage, as stated by M. Roberts, is composed by the establishment of the arena and the joint meeting. In the beginning of the session both disputants are present. There are three motives for this joint start. First, since the beginning the mediator must create an impartial relationship the two parties. Additionally, the mediator ought to be seen doing so. If initial separate meetings took place, the mediator could be vulnerable to criticism or attack of the participants on the grounds of unfairness or previous recruitment. Second, if the principal purpose of the mediator is to engage the disputants on the joint endeavour of negotiation and decision-making, they have to start in direct contact (if still not in straight communication) so that they can follow this path. Third, the joint meeting is the best form to explain and elucidate the objective of the meeting, the structural organization to be followed in order to best accomplish it, the principles that are in operation (voluntariness, confidentiality, among others), as well as the essential rules inclusive of expectations for guaranteeing a safe and tranquil opportunity for sensible exchange. Frequently follows an immediate decrease of tension and anxiety, even after they are told that soon each of them will have a chance to talk to the mediator privately.
The second stage is marked by the definition and clarification of the issues and the separate interviews, conforming the author. It is essential that the mediator spends a period of time with each party individually. The paramount goal is to provide each party with their own separate chance to communicate to the mediator their purposes and impressions, any fears that coming to mediation may cause to them, and any background information that may be useful to the comprehension of the reason why they find themselves there and what they wish. The parties can choose the order in which they will be seen, but the mediator should clarify that it is not relevant who the first one is.
When the separate time is in the end, the mediator explicitly asks if there is anything that was said but that the party does not wanted to be mentioned in the feedback abstract. The mediator should observe the request as long as it is not antagonistic to the total and open progress of the mediation.
Accordingly to the writer, in the third stage, there is return to the plenary and the exploration of the issues. Subsequently to have seeing each of the two parties in particular, the joint meeting is retaken and, at this point, the mediator presents to both participants a succinct abstract of the issues, aims and feelings that each of them has. After stating that, especially if co-mediators are present, the way in which this is done can change, M. Roberts presents the approach adopted in the model (and experienced by her), its motives and benefits.
First, the mediator clarifies to both disputants that he will make a resume of the principal points of what was spoken by each of them, initiating by the one who was first seen individually. Before it, however, he asks the parties to neither comment nor intervene before the summary of both parties has been terminated. The mediator informs that the partisans may hear things that they disagree with or understand in a divergent way. He also elucidates that they will have the chance to inquiry, make observations, confront, or rebut what was said, but uniquely after both abstracts have been concluded.
Then the mediator sums up the central issues pointed out in the individual meeting, directing the abstract to the very party to who it concerns. Such attitude is more desirable than that in which the mediator makes a summary of the views of one party to the other since the latter risks giving the impression of advocacy. In the situations in which there are co-workers, these risks are decreased because the parties can, wrongly, think that each is being assisted by their personal mediator advocate. Nevertheless, co-mediators can divide this task, each following the approach of addressing the summary to the same party to who it concerns in order to avoid the possibility that the disputants envisage them as representatives or advocates.
The objective of the abstracts is to make sure that the perception and experience of each party are clearly and precisely stated, and comprehended, in a way that seems satisfactory to them, conform the author. Acting like this, the validity of the point of view of each person is affirmed, no matter what are their divergences. Once the summary is finalized, the mediator confirms that it really corresponds to an accurate abstract of the party's viewpoint. Furthermore, the mediator offers to the partisans the opportunity to add, rectify or highlight any elements. M. Roberts clarifies that she does not take written notes during the individual meetings because the objective of these interviews is to transmit a notable degree of attention. She completes saying that, by following this procedure, the mediator is not demanded to pay attention with excessive care and recall what the disputant communicate to the end of reporting back with precision. The important are the views and meanings of each party instead of any interpretations offered by the mediator.
In accordance with the author, as soon as the resumes are finished, the mediator asks the parties if they want to reply to what was exposed. It may happen that new information was presented, that there are less differences than it was foreseen, that the parties have already heard everything previously, or, in most cases, that they wish to dispute and confront a part or the whole of what was said.
This inaugurates (in a structured and controlled mode) the exploration of difference, which is the hardest, most disputatious and latently hostile stage of the mediation process. The disputants are going to present their most ambitious requirements, thus exploring the boundaries of the controversy, second M. Roberts.
After saying that in the fourth and fifth stages, respectively, options are developed and the agreement is secured, the author explains the basis for separate time.
M. Roberts states that the structural model adopted permits the mediation process to evolve with maximum effectiveness from a negotiation and psychological view. Second her lesson, the motivations for structuring for separate time, in summary, are:
- It is the moment in the mediation session specifically designated for each of the partisans to be heard. Each disputant have the opportunity to say what they want without worrying about being contradicted or disrupted.
- The mediator has the chance to obtain a lucid comprehension- from each party's viewpoint- of the issues disputed, emotional and moral elements, the historical circumstances of the disagreement, as well as any present or forthcoming fears related to safety or other important things.
- It is the time when the mediator is able to give value to each point of view, by attending to the meanings and impressions of each partisan, no matter which are their divergences.
- This is the occasion for the parties to express, at the proper moment, moral and emotional preoccupations that are strongly perceived, such as individual sentiments of fault, distress, enmity, treason, and anger, as well as any resentment of unjustness (concerning the past, present and/ or the future). The possibility to have these profound emotions and experiences ventilated, paid attention to, and recognized, can give rise to a visible diminution in the disputants' anxiousness and strain even at this initial stage. T. Grillo goes beyond, defying the conventional denial of the mediator to permit a focus on the antecedents and pointing out the relevance of this chance to investigate the historical background as a way to lucidity, strength and power, especially for women.
- Moreover, when these possibly stiff issues or potent sentiments are ventilated, listened to, and acknowledge, they become quite less prone to irrupt and damage negotiations at a later moment in the process.
- Mediators habitually verify that when in the initial joint session both sides seem to accept a view of the issues, it frequently happens that, during the separate time, one of the disputants will perceive the issues in a very different manner. That is the reason why this structural guarantee is never gave up even if (or exactly because) the partisans could suggest that this stage is dispensable when the structure is exposed in the opening phase.
- Prior to mediation, it is fundamental to proceed, routinely, to a screen for domestic abuse. The individual meetings offer more opportunity for continued screening all through the mediation process (it is necessary, for instance, when the intimidatory behaviour might occur for the first time or in order to monitor present or former abusive behaviour).
- Individual time consists as well in the unique moment during mediation for the mediator agree with a vulnerable party on distinctive safeguards with the objective of the latter indicate threatening behaviour that might emerge throughout the session. For instance, the mediator and the vulnerable disputant can agree upon pre-established signals (such as, e.g., putting the purse on the lap) for the second perform if he wants to communicate fear or the urgency to have a break. It is clear that the safeguards cannot be concerted when both parties are present in the room.
The structured abstracts that follow the individual meeting with each of the partisans may boost the achievement of various goals. In fact, the author argues that there are several reasons for the summing up phase that takes place after the separate time:
- The mediator can present a detailed account of the essence of the disagreement and of the associated “strength of feeling (that the party feels strong, how strongly they feel, and what they feel strongly) but free of the angry tone, aggravating facial expressions and acrimonious language that can so easily trigger emotional recriminations and escalate the conflict.”
- At this point, both disputants are more inclined to listen in a calm manner to the mediator than to one another.
- Misunderstandings can early be rectified. In cases in which the communication has been hard or even inexistent, or it has occurred trough attorneys or other third persons, there is a huge possibility of misunderstandings. It is not unusual for the partisans to find out that there are much less divergences between them than they had thought as soon as clean channels of communication are set.
- Recognition of the validity of unlike viewpoints can be manifested by the identical value that the mediator grants to the perspectives, sentiments and aims of each of the parties.
- By acting like this and conferring the appropriate importance to each disputant's perspectives and goals, the mediator also shows his impartiality. Consequently, the structural organization can reinforce fairness through allowing it to be seen in operation.
- The mediator clearly recognises the possibility of dissension and, thus, legitimises its manifestation in a peaceful and secure context and in the correct moment.
- By virtue of analysis, two different phases result from the second and third stages of the mediation process. The first consists in identifying the issues (not only emotional and moral but also functional and legal) that are relevant for the partisans. The second is comprised by the establishment of the agenda for mediation, in other words, the issues that must compose the joint agenda for mediation are elucidated. However, these issues can uniquely consist of negotiable ones (those about which the parties can make joint decisions). These two phases stand out that matters that are not included in any circumscribed definition of an issue may, in spite of it, need to be aired and tackled. The fact that the mediator summarises the issues brings as a consequence the facilitation of the process of creating an agenda.
- The structure alleviates the control by the mediator of two of the hardest passages in the mediation process: from the definition and clarification of the issues to the exploration of these issues; and from the latter (examination of differences) to the phase of development of options, which is more positive. Distance is needed so that a succeeding advance can take place. Douglas explains that the partisans “need the opportunity to experience the exhaustion of their demands” and adds that early movement deprives them of undergoing it. Douglas still states that ‘The exhaustion of topics offers one of the most useful criteria for measuring the timeliness of movement'. M. Roberts, using the teaching of Gulliver, says:
‘If all goes well, parallel psychological transitions are effected in conjunction with the negotiation transitions- insecurity, anxiety, hostility, uncertainty, fear and ignorance are lessened as the wheels of communication exchange generate greater learning, improved understanding, and therefore the reduction of uncertainty, fear and competition and the progressive modification of expectations and behaviour.'
Consequently, it is possible to see that the Bromley Model utilizes a facilitative approach. In this model, the role of the mediator consists in making easier the communication between the parties. Indeed, she, through the presentation of both resumes, facilitates the conversation of the parties instead of restraining the subjects to be discussed.
Confidentiality, as M. Roberts shows, presents dilemmas. The author says that it is the bedrock of the relationship of reliance that ought to exist between the mediator and the clients and of the free and open disclosure (which is essential in order to overcome the barriers and achieve settlement). She also adds that confidentiality is also vital to the voluntariness of participation of the participants and to the impartiality of the professional.
However, when confidential information is shared with the mediator during the individual meeting, it can give rise to problems, as the author explains. It can be hard to keep impartiality in situations in which one disputant is revealing information to the mediator in the absence of the other disputant. Some mediators prevent this by saying in advance that all data uncovered in the particular session must be able to be repeated in the joint session. The objective is to avoid alliances or the perception that alliances are being formed between one partisan and the mediator. Other mediators employ the caucus because they believe that its advantages are greater than the disadvantages and that the particular meeting can boost the potential for succeeding helpful exchanges (e.g., in commercial mediation confidentiality is an essential requirement of the separate time).
In the Bromley Model, as well as in other models, in which the professional permits particular confidential communications during an initial, instituted stage in the structure of the plenary, the nature and the objectives of the model are informed to the clients in the beginning. Frequently, as M. Roberts states, such confidential information is not relevant to the resolution of the dispute, so it is not problematic (for instance, past facts related to the former partner). Nevertheless, it can present problems when the data disclosed in confidence by one of the disputants to the mediator is relevant to the following joint discussion of the dispute. If the mediator cannot convince the disputant to impart the confidential information to the other disputant, then it may be needful to finish the mediation session. This option may be better than to proceed with negotiations that are restricted by the hiding of central information, without the mediator and one of the partisan's knowledge, what can actually take place if separate confidential communications were forbidden.
In sum, the Bromley Model, as a consequence of having its basis on the Coogler Model, presents an organization strongly focused on a clear structure. Additionally, the mediator keeps a “modest” profile and facilitates the communication between the parties. The structural organization is marked by two main points: soon in the process of every mediation session, the mediator spends individual time with each party (ensuring that the privacy and autonomy of the clients are protected); and the disputants are encouraged to directly communicate and negotiate.
The John Haynes' Model
The late John Haynes, eminent trainer, teacher, and practitioner from the United States of America, promoted specific principles to the practice of mediation.
It is necessary to stress out that (as it is possible to verify in the cases presented on his books as well on his mediation videos) in his model the mediator solely meets with the participants in joint sessions. Indeed, the professional never sees the partisans individually. Another chief feature of the Haynsian model is that direct communication between the parties is not stimulated instead the mediator serves as the principal channel of communication between them.
After explaining the nine stages that form the generic process of mediation, as well as the cycles of the mediation process, Haynes passes to state the characteristic features of the model that he developed.
First, the author affirms that the mediator manages and is in charge of the maintainability of the process. However, often the parties act to pull the mediator off from the management of negotiations into different roles. In fact, several times the partisans have the idea that the mediator is a judge that has to be persuaded. The mediator, by contrast, must convince the parties that he is not a judge and that they will not gain his support and sympathy. The mediator assists the disputants to accept that he:
- is committed to the agreement, not to any party,
- is balanced between them,
- controls the process, but concedes the control of the content to the parties,
- does not accept any unilateral definition of the problem given by one of the parties,
- assists them to develop options to resolve their dispute,
- does not hold any secrets from them and does not permit the participants to hide information from the others.
The second point brought by Haynes is the assistance given by the mediator to the partisans in order to define a resolvable problem. In cases in which the parties have an unmanageable problem that seems to be insolvable, the mediator helps them to settle the conflict by the negotiation of a commonly acceptable agreement. Nevertheless, an important portion of the problem consists in the fact that the parties cannot assent on the content of the disagreement. In fact, the disputants frequently have pretty divergent versions of the nature and history of the disagreement.
When the mediator meets with the participants for the first time, each of them has a story to relate. The stories comprise three parts.
The first part is the partisans' particular version of the incidents and the past. The basic information of the versions can be alike, or even equal, but the interpretation that each of them attributes to the facts modifies that view of the circumstances. The version of each disputant has the purpose to convince the mediator how good they are and that each of them is the blameless victim of the circumstances.
The second is the complaint that one makes of the other and vice versa. The complaints have as objective to demonstrate to the mediator that the other is bad. The third one is their definition to the dispute. The principal characteristic is that each of the disputing parties defines the difficulty in such a manner that the problem can solely be resolved if the other alters his attitude or position. For instance, A's problem can only be unravelled by a modification in B, while B's problem can uniquely be worked out by a modification in B.
These three components correspond to each partisan's definition of the dispute. Their incapacity to agree on the content of the problem denotes that, in the stages, to role of the mediator is to secure consensus on the problem to be untangled. The mediator, therefore, helps the participants to find a common and neutral definition for the problem that, once resolved, will bring advantages to all disputants.
None of the parties will change in a one-sided manner or change to adequate to the other's definition of the dispute, as both have their proper definition of the problem. Consequently, the duty of the mediator is to assist the disputants to disregard their particular definition of the dispute and replace it with a common and mutual definition of the dispute. Only at this point the problem solving can start. Indeed, as long as the mediator accepts and works with two divergent definitions of the dispute, it is not possible to reach an agreement (and if the mediator accepts the definition provided by one disputant, he will also be agreeing with the solution that benefits this specific party). Therefore, the mediator seeks to restate the dispute with the use of a commonly formulated definition, so that the dispute can be resolved owing to movement of both participants.
In order to take charge of the definition of the problem, the mediator starts to give rise to legitimate doubt regarding the validity and justness of the initial version of each disputant. However, this is carried out without challenging the image of self of any of the parties. In order to reach this essential objective, the mediator utilizes some defined generic strategies. By generic, Haynes means the strategies that are present in every mediation context: normalizing and mutualising (that give rise to doubt about the original stories) and maintaining a future focuses and summarizing (that makes the new definition of the problem solid). The author then details each of the mentioned strategies.
First he explains in what consists normalizing. If the dispute between the parties reaches a point where the assistance of a third person is necessary to its resolution, the parties are convinced that their problem is sufficiently unique to justify bringing in a third party. They believe that normal problems are resolved in a normal manner, so they frequently frame their dispute as abnormal or presenting uncommon characteristics. The mediator's task is to convince the parties that their problem is normal and can be solved (unless, of course, if the partisans really have an abnormal problem).
The majority of people involved in a problem that demands a mediator are convinced that their situation is singular, and its singularity justifies their postures. Due to the unparalleled features of the situation, each party also thinks that he has an evenly unique (or one-sided) resolution. By normalizing the situation, the mediator compromises the uniqueness of every dispute. By stating that the situation is normal, the mediator is implying that it also can be resolved within normal boundaries. Hence, the more the mediator is able to normalize the participants' dispute the more solvable it becomes in their judgement. Furthermore, it increases the chances that the mediator has to move them towards a mutual definition of the dispute that is not only normal but also common.
The second generic strategy is mutualising. In general, the partisans conceive the dispute in a form that blames the other whilst denying personal responsibility for the dispute. It is rare a party to admit that he integrates the problem. The first expression of the dispute contains an attack on the other, holding him responsible for the dispute. The function of the mediator (as part of generating doubt in order to move in direction of a mutual definition of the problem) is to assist the disputants to dismiss their particular definitions. When one participant makes a strong case that is one-sided, the mediator tries to reframe the issue as a common one.
In the occasion when one of the parties assumes a position, he rarely takes in consideration the perception that the other has. Strategies such as normalizing and mutualising help the participants to consider the situation from different points of view and also are auxiliary to originate doubt regarding the certainty of the original versions. This opens the path for the development of alternatives, common positions that fulfil their self-interests.
As soon as the doubt has been created and the parties want to consider alternatives, the mediator assists the solidification of the changes. He does it through the maintainability of the future focus (that is the third generic strategy) during the discussions.
Haynes passes to explain that when the parties enter in the office of the mediator for the first time, they just want discuss what happened in the past. They protest about previous actions and attitudes. The dispute is centred on the past. The source of the dispute is located in the past, and the fact that the partisans have looked for mediation shows that the past was hopeless and unsuccessful. Nonetheless, he says, it is up to the judge, and not the mediator, to determine who was right and wrong in relation to the past. If any discussion related to the past takes place, the mediator invariably is turned into the role of a judge.
According to the author, since the mistakes of the past cannot be changed, talking about it does not lead to a solution. Instead, this kind of dialogue just gives added emphasis to the participants' particular views of the past. The search for solutions demands a future focus as the solution rests in the future. Therefore, the process of mediation has its focus on the future. The mediator does not have interest in talking of or assessing complaints related to the past, rather his duty is to engage the participants in a discussion about their intentions for the future.
Mediation is concerned with the mode in which the parties want to organize anew for the future, and not with who was correct or incorrect in the past.
The disputants spend most of the time grouching about the things that they do not wish, that is, the maintenance of the antecedent behaviour of the other, conforming Haynes. He explains that, in some way, it is easier for a person to state what he does not want or approve of than it is to express what he does want. As a result, the author continues, the mediator formulates questions regarding what the partisans desire in the future, instead of inquiring them about what they disliked with respect to the past (a positive focus, then).
Due to this intervention of the mediator, the parties shift from expressing their dissatisfaction about the past to manifesting the things that they wish for in the future, conforming the writer. While the participants remain discussing and complaining about what happened previously, they cannot hash out about what they would like to occur dissimilarly in the time to come. The mediator asks a quite small number of questions focused on the past. He gives priority to the use of the present and the future tenses, as Haynes teaches.
He adds that, during the talk over the future, the parties often do not complain, so it presents a fortunate advantage. However, once the past is retaken, the communication between the disputants becomes replete of complaints, accusations, and lack of hope. When conversing about the future, there are neither accusations nor remonstrations. Thus, while the mediator maintains the focus on the things that the participants long for in the future, they are not going to complain. The parties are directly benefited by it because whilst going into their expectations for the future, they are also discussing viable resolutions for their dispute.
While normalizing, mutualising and moving the participants into a future focus, the mediator does not contradict the things that they have stated. Instead, he sums up the principal mediation points that the disputants make, conducting them in direction of problem solving.
Through the final generic strategy, in other words, summarizing, the mediator advances the mediation session. The summary directs the session. The disputants are certain neither of what they can wait from the mediator nor the way to behave as mediation participants. The summarizing process elucidates their expectations and aids them to assume a suitable mediation participant role.
The mediator does not resume all the things that the parties state, but chooses to recapitulate what he thinks that is relevant.
The professional is continuously confronted with choices regarding what to sum up and what disregard. It is an important task since whatever the professional decides to concentrate bears on the parties. The mediators utilizes the resume to
- ignore information that is not useful to the conduct of the session,
- focus in those items of information that are useful,
- ignore all attempts to cast him in a legal or therapy role.
In general, we can say that non-useful information includes
- social talk,
- emotional and emotive statements
- legal and therapy questions.
What is useful in a mediation session is
- information and data about the dispute,
- the clients' goal statements,
- indications of their bargaining behaviours and strategies.”
By concentrating on the valuable and discarding the useless, the mediator remains in role as well as maintain the disputants in role like clients of mediation. Undoubtly, the mediator is not able to sieve all the nonmediation communication of the disputants. Oftenly, they take a firm stand on an answer to these other things. When that occurs, the mediator responds to the needs of the party.
Whereas the mediator is unable to shun every legal questions or emotive attitudes, he can restrict the not useful dialogue. The principal manner is by keeping the focus on what he thinks that is important to the parties. The professional tests and explains the distinction between relevant and useless data. He makes it clears for the partisans what is significant, guiding them far from affectional behaviour. In this way, the mediator directs the disputants towards their personal interests which are contained in the data about the dispute and resolutions for it.
Haynes continues and says that the mediator can restringe the irrevelant discussion by redirecting the participants, discontinuing extensive monologues, and making plain to them that his role is to manage the negotiations. Through the confinement of the emotional behaviour, the professional can focus on manners to be of the most help to the parties in the resolution of the dispute. The majority of the disputants monitor the answer of the mediator, observing what is relevant or not to him, and adjusting their behaviour to coordinate it with the mediator's behaviour. With the cognizance of it, the party can more easily adopt a proper and useful behaviour in the mediation.
When the mediator collects data, as explained by the writer, he seeks for important things, in other words, information regarding the problem, the parties' bargaining objectives, as well as strategies. He sums this data for the party. The information are collected and noted and constitutes the ground of the succeeding line of inquires. The mediator ignores social converse legal questions, and emotions brought by the disputant except if the latter insists on them. In face of the persistence of the client, the professional tries to address the behaviour through its acknowledgement and utilizing other strategies to restrain it.
After drawing the line between relevant and irrelevant conversation, Haynes states that the difference is not so clear in the mediation session. So it is beneficial to consider two manners of emotional behaviour- offensive and defensive.
Offensive behaviours are not helpful and should be ignored by the mediator unless they impede the progress of the mediation process. It comprises attacks by the disputants on each other, arguments, and fights. On the other hand, defensive behaviours are frequently serviceable since they make the mediator aware of underlying issues or they sign affectional issues that, if addressed, disable the mediator to carry out the mediation process.
When the professional “verifies, displays and shares” the information, he uses solely the important data, conforming the mentioned author. The mediator presents the actual necessities “and does not verify, display, or share” with the parties their affectional behaviour or legal requirements. The problem definition is concerned with practical matters related to the significant information provided by the partisans.
Haynes says that when the clients air their emotions or formulate questions related to legal matters, the mediator disregards that part of the conversation and makes an abstract of the useful points. The disputants answer to the sum-up and, if they judge that it is satisfactory, do not challenge the items neglected. However, if they to object to the omissions, the mediator answers to the insistence by adding the omitted portion into the summary so that it can be dealt with.
Summarizing, second Haynes, not exclusively concentrates the attention of the parties on significant data and suggests the relative relevance of the latter to their purposes. It also have further functions- it tests the declarations and views of the participants, helps to establish what is useful or not in mediation, and elucidates information and includes it in the mutual knowledge of both parties.
Hence, it is possible to see that Haynes has a critical approach, in the sense that the response of the mediator to the parties' talk involves careful evaluations. In fact, in the Haynsian Model the mediator interferes with what is said by the clients- the professional filters the information and, after rejecting data that he considers not useful (such as emotional and legal issues), he presents a summary containing only the information that he considers to be of relevance to the mediation.
The writer affirms that the creation of doubt by means of normalizing, mutualising, and keeping a future focus through summarizing constitute the backbone of all mediation. These together with two the two other elements (the fact that the mediator just sees the parties in joint sessions and that he acts as a bridge in the communication between the clients instead of permitting them to talk directly to each other) are the central characteristics of the John Haynes' Model.
All and all, this model, following the aforementioned strategies, applies a future-focus and problem-solving technique. Furthermore, it is a plenary or joint mediation model. In spite of the fact that, in this model, both clients are present during all the mediation process, there is no encouragement to straight communication between them. Rather, the mediator is the conduit through which the parties communicate.
The Bromley Model and the John Haynes' Model present quite prominent differences when compared.
The first contrast is related to the way in which the mediators meet the clients. Whereas in the Bromley Model the professional has a separate meeting with each of the parties at an initial stage in every mediation session, in the John Haynes' Model the mediator solely has jointly meetings with the disputants. Indeed, in the last model the mediator never sees the partisans individually.
As a consequence, only in the Bromley Model the parties can feel that they have their own separate chance to speak to the mediator without worrying about interruptions of the opponent. Furthermore, in the first model the participants feel that their real point of view is being particularly acknowledged and this fact can bring emotional relief, as explained by M. Roberts. Actually, often the parties feel less tense and anxious after they are informed in the beginning of the first session that they will have the opportunity to talk to the mediator privately. Once the disputants have ventilated their emotions and experiences during the particular meeting with mediator, it is less probable that these feelings and occurrences, which are latently disturbing, will emerge later in the joint session and interfere with the negotiations. Moreover, the individual meetings facilities the continued screening for domestic abuse during all the mediation process. Another paramount advantage that is uniquely found in the Bromley Model is that the mediator can agree with a vulnerable client on distinctive safeguards with the objective of the latter indicate during the session that he is feeling threatened.
However, the fact that the professional meets each party separately could more easily give rise to suspect of impartiality. The John Haynes' Model, in contrast, tends to be perceived as neutral by the parties since both are always present in the meetings with the mediator. Another problem that could be mentioned in relation to the Bromley Model is confidentiality. During the separate time that each party spends with the mediator, the party can share confidential information with the mediator and, in some cases, such information happens to be fundamental to the solution of the problem. If this is the case and the client cannot be convinced to share the data with the other client, the professional may decide that it is better not to carry on the mediation. Nonetheless, as stated by M. Roberts, it seems more worthy than to proceed with negotiations in which one of the disputants is hidden the essential data from both the mediator and the other disputant, what might happen in the case in which separate private communications were disallowed (as, for example, in the Haynsian Model).
A second disparity is the way in which communication takes place between the parties. Concerning the method of communication between the parties, Roberts and Palmers say that, when the parties are present, two kinds of communication can occur: the direct communication (in which the parties communicate directly, talking to each other), and the indirect communication through the intervening third party (where there is not a straight communication between the parties, instead each of them talks exclusively with the mediator and he is, therefore, the bridge through which the communication to happen). They add that the distinctions between these two modes of communication have impact on the quality of communication as well as on the level of control that the mediator holds over the negotiation. In the John Haynes' Model, the participants do not communicate directly. Instead, the mediator is the channel through which the parties communicate. The professional, thus, has a big role in the mediation session. On the other hand, in the Bromley Model the mediator stimulates direct communication and negotiation between the parties. In this sense, the profile of the mediator is ‘modest'. In fact, attempting to the lesson of Roberts and Palmer, the professional in the Bromley Model controls less the negotiation and provides the clients with a better quality of communication than the professional in the Haynsian Model, in which the mediator keeps the control of the communication and, thus, of the negotiation.
The third difference is related to the evaluative-facilitative role of the mediators. As already mentioned, in the John Haynes' Model, the professional proceeds with a judgment of which kind of information is relevant for the mediation process and which sort of data is useless. Moreover, in this model the mediator while serving as a bridge for the conversation of the parties keeps the control of the communication. Consequently, it could be easy for a mediator that deploys the Haynsian model to adopt an evaluative mediation and, thus, influence on the decision of the disputants (if the mediator really acts in order to conduct the outcome, the mediation would be closer to an adjudication process than to a communication process). The are mediators who utilize an evaluative method support
“that disputants often seek out the opinion of a neutral third party- that the mediators' opinion often helps, rather than hinders, the construction of settlements. Discussing how each disputant's position accords with the existing social and legal norms makes for more informed, and, in the long run, more equitable agreements.”
Indeed, the John Haynes' Model offers conditions to the mediator take control of the session and, following the way that seems more appropriate to him (in other words, evaluating), direct the mediation towards a settlement.
Nevertheless, there are facilitative mediators who believe
“that mediator evaluation serves as a useful purpose only if one defines to goal of mediation to be settlement. Another, and for many, more important goal is expanding the consciousness of the disputants. Mediation may enable people to become more aware of their own needs, while simultaneously attaining a better grasp and appreciation of the needs of the others. Mediation can only effect these therapeutic transformations by centering negotiations on the parties' interests, and encouraging open, forthright, and often intimate disclosure. Reorienting discussion to the mediator's perspective of the parties' dispute limits the possibilities for true self-knowledge or empathy with the other.”
The Bromley Model is closer to the facilitative mediation as long as the mediator (although not passive) seeks to facilitate the communication between the parties, not only by making two sums-up of what was said by each of the clients during the individual meeting (inclusive of emotions and legal issues) but also by stimulating the disputants to have a direct communication.
It is possible to see, therefore, the contrast: the Haynsian Model is near the evaluative mediation whereas the Bromley Model fits into the facilitative kind of mediation.
One similarity between the models is that both follow a quite well-defined structure in order to gather the data and define the problem. Yet, the structures deployed by the mediator in each of the models are quite different. In both models the mediators, following the respective characteristic structure, make a summary in order to restrict the issues to those that are strictly necessary to the resolution of the problem. Still, in each model, within the peculiar structure, the mediator employs a divergent approach in order to reach the core issues and define the dispute. We will now discuss the opposed structures.
As already seen, the John Haynes' Model is marked by a problem solving technique. In order to structure the session and resolve the dispute, the mediator applies four strategies: normalize and mutualise, that generates doubt regarding the original version given by the parties to the dispute, and maintainability of the future focus and summarize, that assist the solidification of the new definition of the problem.
In conformity with the lessons of Haynes regarding the structure of the model, the professional first normalizes the dispute and changes the belief of the parties that their dispute was uncommon and, thus, justified a one-sided resolution. Then, through mutualising, the mediator assists the clients to discard their individual definition of the dispute and replace it with a common and mutual definition, allowing the problem solving to initiate. As soon as the mutual definition of the problem has been established, the disputants are ready to consider alternatives to the resolution of the dispute. In order to help the solidification of the changes, the mediator ensures that a future-oriented focus is maintained during the negotiations.
The future-focus is essential in the Haynsian Model. The underlying idea is that to talk about the past just gives more importance to the clients' individual views of the past. The search for solutions demands to keep the focus on the future. The professional makes questions to the participants and asks what they look for in the future. Whilst going into the disputants' wishes for the future, viable resolutions for their problem are being discussed.
Through summarizing, the mediator directs the session. He does not sums up all the things that the parties state, but only recapitulates what he thinks that is relevant. Even though the mediator is not able to restrain each legal questions or emotive attitudes brought by the partisans, he can restrict the useless dialogue by maintaining the focus on what he thinks that is important to the disputants, that is, information about the problem, the objectives stated by the disputants, and signs of their negotiation attitudes and strategies.
Briefly, in the John Haynes' Model the “defining the problem” stage is marked by the mentioned four strategies. The mediator subsequently utilizes the first three of them (normalizing, mutualising, and future focus) in order to move the mediation process forward and reach the summary stage. Then he can, by keeping the focus on what he believes that is useful and ignoring emotional and legal issues, concentrate only on the issues that he believes that are important for the dispute, solidify the new definition of the problem, and proceed with the mediation process until reach the solution of the problem.
In the Bromley's Model, contrastingly, the summaries are made only after the separate interviews of the mediator with each of the parties. After each client had their own individual chance to communicate to the mediator their aims and impressions (including their feelings), there is a return to the plenary. At this moment, the mediator gives a feedback abstract (respecting the secrecy of points that are not relevant to the outcome of the dispute and were asked by any of the participants to be kept in confidence) of what was said (issues, purposes and sentiments) by each of the parties during the particular meetings. By doing so, the mediator ensures that the viewpoints and experiences of each client are precisely stated, and understood, in a form that seems satisfactory to them. Once the summary is finalized, the professional confirms that what he just summarized actually corresponds to an accurate abstract of the partisans' point of view and offers them the chance to complement, rectify or point out any elements. This initiates the exploration of differences.
In the Bromley's Model, the mediator, in order to reach the core issues of the dispute, does not disregard the point of view of the participants, the past, or even the sentiments of the disputants. Instead, during the particular interviews, the professional transmits a high level of attention to the clients and allows them to impart everything that they want. This is a mode to address the emotional needs of the partisans, of the mediator be more aware to the background that culminated in the partisans looking for mediation, and of pre-empting the potentially disturbing effect of past facts and feelings. Moreover, when the mediator summarises the view of each of the parties after the return to the joint meeting, the parties feel that their viewpoints were satisfactorily acknowledged and then become ready to negotiate towards the achievement of an agreement.
Therefore, it is possible to see that not only the structure of the models are completely dissimilar, but also the approaches applied by the mediators in each model in order to establish the issues that are in dispute.
Since they are dissimilar models, it is not possible to say that one is better than the other. As M. Roberts says, ‘There are a variety of structural arrangements that can frame the mediation process and no one model is best for all purposes.'It is clear, though, that both present high and low points.
Regarding this respect, it is relevant to remit to Folger and Bush who say that the mediation can have transformative results. They state that when the mediation is transformative, it has two objectives: empower the parties and enhance each disputant's recognition of the other. In order to promote the empowerment of the partisans, the mediator attempts to ‘strengthen people's capacity to analyze situations and make effective decisions for themselves.' In relation to intraparty recognition, the mediator acts to ‘strengthen people's capacity to see and consider the perspectives of others.'
Applying these characteristics to the models in study, it is possible to see that the Bromley Model is closer to the transformative mediation described by Folger and Bush. In fact, in the Bromley Model the mediator tries not only to empower the parties but also to promote the intraparty recognition. The recognition is enhanced in the Bromley Model through the summaries made by the mediator after the individual meetings. When the mediator sums up what was said by each of the parties, he is acknowledging both positions and adopting a neutral position that also represents that the two views have the same importance and should be taken into account in the resolution of the dispute. However, in the John Haynes' Model the mediator searches for a mutual definition of the problem and, in order to do it, he disregards the opinion of the parties. In reality, in this model the mediator tends to ignore the perspective of the clients (impeding, thus, that each disputant can recognize the perspective of the other) instead of acknowledging it.
Additionally, Folger and Bush bring ten hallmarks that are present in the work of a mediator that is implementing a transformative mediation. In the fifth hallmark they state that
“In transformative practice, third parties view the expression of emotions- anger, hurt, frustration, and so on- as an integral part of the conflict process. Intervenors therefore expect and allow the parties to express emotions, and they are prepared to work with these expressions of emotion as the conflict unfolds.
This practice grows not out of an attempt to serve therapeutic goals but out of an attempt to reach transformative goals, since the expression of emotions often indicates important opportunities for empowerment and recognition”.
Consequently, the Bromley Model matches the transformative mediation described by the writers since it allows the parties to express their feelings and sentiments. The Haynsian Model, though, goes on the opposite way as the mediator seeks to suppress any emotions revealed by the clients.
Furthermore, in the eighth hallmark the writers say that the discussion of the past is valuable to the present because it is frequently a very good way to reach the purposes of empowerment and recognition. ‘An important hallmark of transformative practice is a willingness to mine the past for its value to the present-in particular, for the opportunities such review offers parties to help clarify their choices and reconsider their views of one another.'
Once more, the Bromley Model is in accord with the features of the transformative mediation, but the John Haynes' Model is antithetical to this view as it is focused exclusively on the future.
Therefore, the Bromley Model presents the characteristics of a transformative mediation and tries to boost the empowerment of the clients and the intraparty recognition.
For these and the other factors already mentioned, it is possible to conclude that the Bromley Model presents more advantages than the John Haynes' one. Indeed, the separate time in the first model provides the parties with a personal attention that is inexistent in the second one. In addition, they can talk about the past, ventilate their emotions, express their fears, and feel secure by the establishment of a safeguard to they will be able to communicate to the mediator any threat that they may perceive during the session. Another relevant benefit of the Bromley Model is the continued screening for domestic abuse. The question of confidentiality and the perception of the mediator as a neutral third party can be less debatable in the John Haynes' model. However, the advantages proportionated by the Bromley's Model exceed these adverse points. Equally important is the fact that the Bromley's Model fits into the framework of the facilitative and transformative mediation. The John Haynes, on the other hand, propitiates the right conditions to the implementation of an evaluative mediation, which interferes with the decision of the parties (and, in this sense, would be closer to an adjudication).
Lastly, it is necessary to bear in mind that the studied models are distinct. However, the Bromley Model seems more human and apt to “promote the realization of a constructive and fair process and outcome, and preserve and protect respect for the parties' dignity, privacy and autonomy” than the John Haynes' Model. Indeed, by its characteristics, the Bromley Model, by adopting a facilitative approach, allows the mediation process to reach its maximum effectiveness since it not only tackles the dispute through a determined technique but also responds to the necessities that the clients, as human beings, have.