Rights Based vs Interest Based Mediation

There are many different approaches which can be applied to resolve disputes in the context of mediation. 
 
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 what would be achieved in a court setting.  This will often lead to a process where by a third party would encourage the parties to evaluate or even offer an evaluation of the legal merits of the dispute.
 
"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.[1]
 
An ‘interest-based’ approach focuses on the underlying needs or interests of the parties and encourages a broader range of solutions or resolutions to the dispute which addresses the underlying interests of the parties instead of, or in addition to, being restricted by legal parameters.
 
By encouraging the parties to explore underlying interests, which are the needs that motivate any legal position taken, they are in effect defining the real problem.  By exploring the parties’ interests the problem to be solved takes on new dimensions.  By focusing on interests, parties who are at an impasse may discover several possible solutions to their problem, and may also discover shared compatible interests.
 
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 his principal mission is to clarify and to enhance communication between the parties in order to help them decide what to do." 
 
[1] Leonard L Riskin, "Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed" (1996)
 


Experienced Interest Based Problem Solving Facilitator

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Karl Perry


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