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 each situation – including the nature of the dispute, the emotions that surface, and the individuals involved.

Situational Mediation

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 beneath stated positions (such as the need for equality, safety, security, and respect), 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 because of my gradual awareness that something important was lacking in the other mediation approaches I had learned. Here’s how my awareness unfolded.

I first learned to mediate in 1993 using an evaluative or directive model. This was the first of three approaches to mediation I would learn in the next few years. The evaluative model 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 having been a trial lawyer for nineteen years, I was uncomfortable with its heavy reliance on persuasion by the mediator and preoccupation with settlement at any cost.

In 1994, I was trained in the facilitative model of mediation. This model calls for the mediator to facilitate settlement by helping the parties communicate and negotiate effectively, clarifying their respective interests, and engaging them in problem-solving. Here, settlement is important, but it’s not the end-all that it is with the evaluative approach. Initially, I was excited by this approach and over next few years integrated it into my practice – but I soon became aware that something was still missing.

In 1998, I was schooled in a third model of mediation, the transformative approach. Here the mediator watches for opportunities to foster empowerment and recognition. Empowerment occurs when a mediating party becomes aware of something new about him- or herself. 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 agreement; 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 for any minor children, and settle any child support and/or spousal maintenance issues.

It was then that I realized that the evaluative, facilitative, and transformative models were useful, but incomplete when dealing with divorce or legal separation – because they all lacked 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 limitations. It is for this reason that Situational mediators look for opportunities to self-disclose instances when they themselves, for example, inappropriately reacted angrily.

Compassion is an attitude exhibited when mediators are caringly responsive to the grief one or both spouses are likely to exhibit during mediation. Situational mediators recognize that divorce entails the loss of a significant relationship, and that spouses often are in a different stages and varying degrees of denial, anger, sadness, and other emotions. Contrary to many mediators – who because of their training (or personal discomfort) disregard, avoid, or eschew any display of emotion – Situational mediators view emotional outbursts as fertile ground for furthering the understandings that foster settlement.

Now, having been a full-time mediator for over 20 years and mediated more than 2500 divorces, I am convinced that by combining the best aspect of the directive, facilitative and transformative models, the Situational approach maximizes the efficiency, effectiveness, and economy of divorce mediation.