Smartsettle Delivers the Best of both Worlds
This article was inspired by a similarly titled article published on Feb 16, 2017 by Philip McMullan. Much of the content below is similar to what McMullan wrote.
There are two general approaches to mediation, each with it’s own merits and advocates. A “rights-based” approach focuses on the legal rights of the parties and attempts to achieve a resolution that meets the relevant legal criteria of the dispute in a manner that is consistent with resolutions achieved in a traditional court setting. This is considered as a broadly evaluative approach. On the other end of the spectrum, an “interest-based” approach focuses on the underlying interests of the parties and encourages a broader range of solutions to the dispute that address these interests. This is the facilitative approach and may produce outcomes that look very different to anything that comes from a court.
These two mediation styles are defined as follows:
Evaluative Mediation
The mediator who evaluates assumes that the participants want and need her to provide some guidance as to the appropriate grounds for settlement based on law, industry practice or technology – and that she is qualified to give such guidance by virtue of her training, experience, and objectivity.
Facilitative Mediation
The mediator who facilitates assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator and, perhaps, better than their lawyers. Accordingly, the parties can create better solutions than any the mediator might create. Thus, the facilitative mediator assumes that her principal mission is to clarify and to enhance communication between the parties in order to help them decide what to do.
Proponents of facilitative mediation say that it empowers parties, and helps them to take responsibility for the resolution of their dispute. Those on the other side of the argument say that facilitative mediation takes too long, with a higher likelihood that the process will end without agreement. They contend that outcomes can be contrary to standards of fairness and that mediators in these approaches cannot protect the weaker party.
Those who favour evaluative mediation say that clients want an answer if they can’t reach agreement, and they want to know that their answer is fair. They point to the increasing number of clients choosing evaluative mediation to show that the market supports this approach more than others. Evaluative mediation’s popularity is due to the closed minds of lawyers who choose this style because they are familiar with the process, say detractors. Some say that the clients would not choose evaluative mediation if given enough information to make a choice and worry that the evaluative mediator may come to the wrong decision.
The Smartsettle process delivers the best of both worlds. We refer to our neutrals as facilitators since they start with a strong facilitative approach that empowers the parties and puts them in control of a collaborative negotiation that enhances relationships and produces a timely outcome. The Smartsettle process utilizes tools and techniques that virtually eliminate the tedious negotiation dance that characterizes ordinary negotiations. Preference analysis and optimization make sure that the outcome is as good as possible, without the fear that it may be unfair, since the acceptance of any particular package is voluntary and supported with professional advice to each party. In the event of no agreement in Final Session, neither party has risked revealing their hand and they can still opt for an “evaluative” conclusion using Smartsettle’s Expert Neutral Deal-Closer (END). The END process is designed in a way that avoids identifying a clear loser so the final result is a less expensive but more satisfactory settlement, no matter which way the process goes.
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