Situational Mediation

Situational Mediation

Originated by Oliver Ross, JD, PhD, the founder of Out-of-Court Solutions, the Situational™ approach to mediation is based on the premise that mediators must be adaptable to the particulars of each situation – including the nature of the dispute, the emotions that surface, and the individuals involved.

As elucidated in Oliver’s book, Situational Mediation: Sensible Conflict Resolution, unlike other mediators who routinely follow one mediation style, Situational™ mediators are adept at combining the directive, facilitative, and humanistic approaches to mediation. They are also adept at facilitating effective communications and negotiations, offering different options and alternatives for resolution of issues, uncovering the emotional interests (such as the need for equality, safety, security, and respect) beneath stated positions, and providing legal, financial, tax, and other information.

The Situational™ approach to mediation has proven highly effective. It assures that mediating parties make fully informed decisions and reach durable agreements – quickly, inexpensively, and with as little stress as possible.
*Admitted to practice law in California only.

The Situational™ Approach to Divorce Mediation

By Oliver Ross, JD, PhD

 The Situational approach to divorce mediation came about not by design but rather as a result of my gradual awareness that something important was lacking in the other mediation approaches I had learned and practiced. Here’s how my awareness unfolded.

I first learned to mediate in 1993 using an evaluative or directive approach. This was the first of three approaches to mediation I would learn in the next few years. The evaluative approach is patterned after court-based settlement conferences and calls for the mediator to conduct a series of separate meetings with the divorcing couple and/or their attorneys. During these sessions the mediator evaluates the strengths and weaknesses of each party’s position and strives to direct them toward settlement by pointing out the weaknesses in their respective positions and otherwise persuading them that settlement would be in their best interest. The goal is to achieve settlement in conformity with the divorce laws and legal standards involved. Although I was familiar with this model from my background as a lawyer, and although I was adept at evaluating cases and directing divorcing couples toward settlement, I was uncomfortable with its heavy reliance on persuasion by the mediator and this approach’s preoccupation with settlement at any cost.

In 1994 I was trained in the collaborative or facilitative approach to mediation. This approach calls for the mediator to create a process primarily aimed at facilitating interaction and cooperation between divorcing couples. Here the mediator facilitates settlement by helping the parties communicate and negotiate effectively, clarifying their respective interests, and engaging them in problem-solving. Rather than directing participants toward settlement, as in the evaluative approach, the mediator facilitates collaboration. Settlement is important under this approach, but it’s not the end-all it is under the evaluative model. I was excited by this approach and over next few years integrated it into my practice. Nevertheless, I sensed that something was still missing, and thus continued to search for a more complete approach.

In 1998 I was schooled in a third approach to mediation, the transformative approach. Here the mediator watches for opportunities to foster empowerment and recognition. Empowerment occurs when a divorcing couple learns or becomes aware of something about themselves or the situation in which they are involved. Recognition is fostered when the mediator helps the parties understand and acknowledge their mutual concerns, needs, feelings, perceptions, and interests. It is hoped that the empowerment and recognition achieved during transformative mediation better equips the parties to reach mutually acceptable agreements; however, because transformative mediators eschew directing the parties in any way whatsoever or offering them different options or alternatives for resolving issues, I concluded that adherence to this approach was impracticable when mediating how a divorcing couple will divide assets and debts, devise a durable parenting plan, and reach mutual agreement any child support and/or spousal maintenance.

It was then that I realized that the evaluative, facilitative, and transformative approaches were useful, but incomplete. They were all deficient in the application of three essential elements: empathy, humility, and compassion.

Empathy occurs when the mediator demonstrates the willingness to engage on an emotional level with divorcing couples. Recognizing that empathic interactions with divorcing couples are likely to garner trust and promote an overall atmosphere of mutual respect, Situational mediators are quick to engage in and model this kind of behavior.

Humility takes place when the mediator promotes equality by briefly revealing his or her own shortcomings. It is for this reason that Situational mediators look for opportunities to self-disclose instances when they themselves, for example, experienced uncontrolled anger or otherwise reacted inappropriately.

Compassion is an attitude exhibited when mediators are sympathetic and caring in response to a party’s suffering. Situational mediators recognize that divorce entails the loss of a significant relationship, and that the parties can be an often are in a different stages of a grief process with varying degrees of denial, anger, sadness, and other emotions. Contrary to many mediators, who as a result of their training (or personal discomfort) disregard, avoid, or eschew any display of emotion, Situational mediators view emotional outbursts as fertile ground in which to further the mediation process.

Because the issues and emotional dynamics involved in each divorce situation are different, a Situational mediator must be adept at selecting the best approach.  Instead of sticking to one approach, to maximize mediation a Situational mediator must sometimes be facilitative, other times directive, but all the while empathic, humble, and compassionate.