Reprinted with permission from the Dispute Resolution Journal, vol. 59, no. 2
(May-July 2004). Copyright © 2004 American Arbitration Association, 212.718.5800.
The debate over “evaluative” versus “facilitative” mediation is now largely between attorney-mediators and mediators who are not attorneys. Those on both sides of this divide are becoming ever more frustrated with the divisive labeling.[1] Leonard Riskin tried to help resolve the issue with his well-known “grid for the perplexed.” His grid describes four general ways that mediation is being done. Riskin’s intention was to “communicate with some clarity about what can, does, and should happen in a mediation” and enhance decision making about the selection of mediators.[2] But instead of creating clarity, the grid, in my view, has led to even greater confusion. The problem is that it provides no guidance as to how mediation could or should be done, or how it will be done by any particular mediator. Therefore, it provides little help with decision making about the selection of a mediator. Nevertheless, and this is most troubling, the grid has been widely used to support and legitimize several questionable forms of mediation practice.[3]
After briefly critiquing Professor Riskin’s model, I will discuss an alternative approach to predicting mediator behavior. My approach examines the potential mediator’s background, experience and biases, not using a grid to forecast what the candidate for mediator will do.
The Grid Unplugged
Riskin’s grid consists of (1) a horizontal axis depicting a “problem definition continuum” from “narrow” to “broad” and (2) a vertical axis depicting the spectrum of mediator behavior from “facilitative” to “evaluative.” These axes intersect at their mid-points, producing four quadrants representing four types of mediators:
According to Riskin, evaluative mediators assume that the parties need guidance as to an appropriate settlement based on the applicable law, industry practice, or other professional standards. Evaluative mediators tend to be experts in these standards.
By contrast, facilitative mediators assume that the parties either have, or are able to obtain, their own substantive information. So they see their role primarily in terms of improving communication between the parties to help them make their own decisions. Since Riskin developed the grid, so-called facilitative mediators have argued that evaluative mediation is a contradiction in terms and should be considered a form of arbitration rather than mediation. At the same time, so-called evaluative mediators have argued that facilitative mediation is too passive, inefficient and unrealistic.
This fundamental conflict needs to be resolved, but getting there will require updating the notion of conflict itself.
I believe that if mediation is to be a true alternative to legal processes, then its underlying theory must also be distinguished from traditional legal theory. However, Riskin’s model cannot be so distinguished since it is based on the fundamental legal doctrine of objective or proximate causation, the commonly accepted, pseudo-scientific legal doctrine used to determine the cause of a plaintiff’s injury.
According to Riskin, conflict is caused by a set of objective problems ranging from relatively narrowly-focused “litigation issues,” to broader “business interests,” to even broader “personal/professional/relational interests,” and, finally, to “community interests.” Riskin’s model rests on the following assumptions. First, each set of issues (or factual causes) can be effectively identified and settled separately from other issues. Second, most conflicts can be resolved by giving attention to a very narrow set of content based causes. But these assumptions grossly oversimplify the complex nature of conflict and its full resolution.
Academic thinkers in the field of conflict resolution commonly define conflict as “an expressed struggle between at least two interdependent parties who perceive incompatible goals, scarce resources, and interference from others in achieving their goals.” [4] Under this definition, it is the parties’ perceptions, not the factual chains of causation, that offer the key to understanding and resolving their conflict. According to William Wilmot and Joyce Hocker, conflict is made up of an interlocking mixture of four different goal types: content goals, relationship goals, identity goals, and process goals. While all four of these goal types may not be equally relevant in every conflict, they are all at least potentially relevant, and some might be hidden or emerge in disguised forms. These goal-types frequently overlap and are often impossible to separate. So, according to Wilmot and Hocker’s theory, every conflict arises from a mix of interdependent, interwoven causes, not a linearly defined set of problems. This, incidentally, is just how Nicholas St. John Green and Oliver Wendell Holmes, Jr. argued against the chain of causation theory in 1870.
Lon Fuller observed that because all conflict involves a complex mixture of goals, approaches to dispute resolution based only on content goals are rarely enough to “reorient the parties toward each other” and toward a “new and shared perception of their relationship”–the key goals of mediation. [5] Identity and relational issues tend to underlie both content and process issues. Thus, a mediator needs to be able to recognize and address all four interconnecting goal types.
Clearly Riskin’s grid does not reflect the underlying psychological aspects of human conflict. Because it is built on a relatively narrow conception of conflict, it is only useful for describing mediators whose practices are predicated on that same conception. Therefore, it cannot predict how mediation can and should be performed in light of a broader understanding of conflict.
Another major problem with the grid is that it cannot predict a mediator’s style without input from the mediator indicating the proper quadrant of the grid. Most mediators resist defining themselves in terms of Riskin’s four styles. The best mediators will draw from all available mediation techniques, depending upon the situation.
If a mediator does not wish to label her mediation style, the parties have little recourse but to investigate the background of the potential mediator. As Riskin readily admits, professionals do what they know how to do. For example, lawyers are accustomed to taking control of a situation, giving advice, and applying their analytical and evaluative skills to win their case. Thus, lawyer-mediators can be expected to behave the same way when acting as a mediator unless they have been thoroughly trained to follow a different “philosophical map.” [6]
An Alternative Approach
My hypothesis is that a mediator’s approach to mediation can be more accurately predicted by examining who the mediator is than by characterizing the mediator’s style on Riskin’s grid. What a mediator does in a given mediation varies with the circumstances, but who the mediator is should stay constant throughout that mediation.[7]Who a mediator is can be determined, at least in part, by looking at the person’s background, formal mediation training, and biases.
Relationship Bias.
When considering a particular mediator, each party should first consider the mediator’s “relationship biases” — that is, her relationship to the dispute, to each party and their counsel. Does the potential mediator work at the same law firm as one of the attorneys ? If so, does she know the attorney personally? Does she have a personal, supervisory, or other relationship with one of the parties or a personal, business, political interest in the dispute?[8]An “outsider” mediator—i.e., an independent mediator with no direct connections to either party—will have fewer preconceived notions as to what the dispute is about and how to resolve it. It should be easier for an outsider mediator, who will have no relationship bias, to see multiple roots of the conflict. It should also be easier for the outsider to maintain the confidentiality of mediation communications and display a credible concern for both parties. True, it may take longer to educate an outsider mediator about the details of the dispute. This person will have to spend more time becoming familiar with the issues and building rapport and with the parties and obtaining their trust.
An insider mediator with a relationship bias may be more convenient and less expensive to use, but this person could have a stake in the outcome and therefore not be as objective as an outsider mediator. In addition, an insider may have difficulty sharing power with the parties. Consequently, insider mediators require special mediation training. They can make good mediators for certain situations, such as those involving strictly interpersonal issues and those where very early intervention is possible. However, to be effective, they must have been trained not to allow any connections to the parties or the dispute to interfere with the role as a neutral mediator.
It should not be assumed that an outsider mediator is qualified to mediate what I will call an “inside mediation,” for example an employment dispute involving a manager and a subordinate, or that an insider mediator is qualified to mediate an “outside mediation”–for example, a commercial dispute between two unrelated parties. Knowing whether a potential mediator typically practices mediation as an outsider or as an insider provides important clues as to this person’s mediation style.
Content Bias.
In selecting a mediator, it is also important to find out how much knowledge the mediator has about the dispute. I call this “content bias” but it is more often called subject-matter expertise. This type of bias can be determined from the potential mediator’s education, professional training, work experience and current employment. For example, a mediator whose experience is as a builder will have content bias in a construction dispute.
All too often, parties consider the potential mediator’s background and education to be the primary qualifications for choosing a mediator. But content bias does not imply an ability to resolve disagreements over content issues. Thus, choosing a mediator solely on the basis of expertise in the subject matter is usually a mistake. In fact, research by Linda Neilson has indicated that mediators who are content experts tend to be more biased toward a limited number of solutions which may have worked in similar situations in their past, but will not necessarily work for the situation currently faced. [9]
However, mediators with content expertise have the following advantages. They can more easily follow the discussions and raise hidden dangers not readily seen by the disputants. On the other hand, they are also more likely to conclude too quickly that they have a complete understanding of the dispute and therefore may miss important nuances that may make a situation unique. Thus, they are likely to recommend solutions that could lead the disputants even further away from addressing their unique needs. Two studies found that lawyer-mediators tend to ignore the emotional dimensions and hidden agendas in conflict, which encourages them to rely on their legal knowledge to suggest solutions. [10] Another study found that “the use of mediator suggestions was negatively associated with an improvement in the parties’ relationship.” [11] The researchers concluded, “This suggests that mediator recommendations may not be sensitive to the parties’ long-term welfare. It also suggests that measures of success in mediation should not be restricted to the occurrence or nonoccurrence of agreements.”
Authority Bias.
Another important consideration in mediator selection is the amount of “authority bias” –i.e., decision-making authority– the potential mediator has over the parties. Some mediators have decision-making authority based on administrative or political relationship with one or both parties. [12] Mediators with high status in the community do not have authority bias per se, but they can have substantial influence over the parties, which can seriously compromise the parties’ self-determination. On the plus side, mediators with authority bias or high stature can sometimes facilitate settlements more quickly. However, the quality and depth of the solution could suffer. Authority biased mediators are frequently preferred, particularly in international disputes, even by the party over whom they have less influence, because of their ability to exert leverage to help “deliver” the other party’s agreement to a settlement. [13]
Authority-biased mediators are often in a position to specify the negotiating parameters within which an agreement can be made. They also may have the ability to monitor implementation of a settlement and apply sanctions for noncompliance.
Linda Colburn exemplifies a mediator with a strong authority bias. She performed “on the spot” mediations of disputes among the residents of a housing project where she was the manager. [14] Because of her position of authority, she could determine whether the agreements the residents made were consistent with her understanding of good management practice. The residents also knew that their mediator had the power to evict for non-cooperation or for breaking an agreement.
In a mediation involving a mediator with authority bias, the parties may not be as free to create their own agreement as they might be if they use a completely independent mediator. Under circumstances like this, parties can still reach mutual settlements, but the process may not be completely voluntary, and all parties may not be treated equally.
Empirical research supports the idea that mediators draw power from a variety of sources. The more power the mediator has, the more directive the mediator is likely to be. [15] Authority is a form of power and those with a high degree of authority can be expected to exert that authority by being directive. So, understanding the degree of authority the mediator has over particular disputants provides a clue as to how the mediator will function.
Traditionalists and Professionals
Not unlike other academic and licensed professions, which are based on a much longer history of theory and research, the emerging profession of mediation is built on a series of assumptions, what might be called “education biases,” about conflict. These include the following:
1) Because of human interdependence, cooperation contributes more to success than does competition.
2) Conflict is universal and a source for positive growth, not a negative that must be eliminated or avoided.
3) The perception of what is real is more important than objective fact.
4) The drive to satisfy basic human psychological needs, not internal dispositions of personality, underlies most conflict.
5) Human conflict is not random, but largely predictable.
6) Outsiders are much less qualified to resolve a conflict than are those directly involved. 7) Everyone can learn to improve their conflict management abilities.
I contend that it is the acceptance of these assumptions about conflict and the ability to apply them to the mediation process that really elevates the professional mediator over what I call the more traditional mediator. This makes it easier to see how the conflict between so-called evaluative mediators and facilitative mediators developed. The traditionalists became mediators as a natural extension of who they already were. For example in ancient times, tribal elders respected for their wisdom and fairness by the community often became mediators. When disputes arose, the use their analytical skills and the art of persuasion to help parties reach mutually agreeable solutions.[16] The same is true of American attorneys, therapists, and managers in today’s society who have become today’s evaluative mediators.
A traditionalist mediator tends to approach a dispute with an open mind and listens to both sides. Once the traditionalist mediator believes that she understands the needs of both parties, she interprets these needs and proposes some options (which may be in addition to options the disputants propose). The traditionalist may subtly encourage (or coerce) both sides to “voluntarily” accept what appears to be the best option from their perspective. With this approach a traditionalist makes the best use of her knowledge and position, while helping the parties create an agreement that both sides see as fair.
Lawyers, therapists and managers see conflict all the time so they have a feeling for what is likely to happen if the conflict is not resolved. They may be familiar with how others have settled similar situations and they naturally believe that, with little effort, they can expand their practice into mediation. They think that they qualify as mediators mainly because of their profession, education, work experience, philosophy, and position in an organization or society. On the other side are the professionals—those who qualify as mediators as a result of their commitment to the study of conflict and how to promote movement toward truly mutual resolution that is independent of the mediator’s assessment. While professionals are taught to distance themselves from their prior profession, they are also trained to use whatever content bias they have for the benefit of all disputants. Professional mediators are not just facilitative mediators by another name. They actually combine the best techniques of both evaluative and facilitative mediation.
Naturally, many traditionalists are guarding their status, their ease of entry, and their caseloads, while denying the idea that any additional education in mediation might be necessary. Some traditionalists suspect mediators who are not attorneys might be guilty of the unauthorized practice of law. Meanwhile, many professionally trained mediators believe that it is the traditionalists who are guilty of the unauthorized practice of mediation. [17]
Many professionals are discouraged by their small caseloads, wondering why their special training is so poorly recognized. Mediators on both sides are experiencing interference with their goals, and so it is not surprising that both sides are having trouble communicating with each other. While both kinds of practitioners are mediators, their understanding of the mediation process and its application and potential are significantly different.
Conclusion
In summary, traditional mediation has existed for thousands of years and it is likely to see continued widespread use. However, potential consumers of mediation services should understand that over the last 50 years, a newer, more professional, transdisciplinary specialist mediator has developed. The professional has extensive formal training “separate and apart from other professional endeavors.” [18] The professional’s approach to mediation centers around the recent advances in understanding the nature of conflict and the potential for its full resolution. The professional mediator is less directive than the traditional mediator, and therefore requires less content knowledge. The professional mediator also does not require decision-making authority or familiarity with the disputants (although these need not be completely eliminated). However, the professional mediator does require substantial amounts of education–much more than the current 40-hour training standard.
Determining in advance whether a given mediator is likely to mediate traditionally or professionally is largely a matter of doing a little investigation into who that mediator is. Traditional mediators tend to be highly knowledgeable about the subject matter of the dispute and tend to have high status or authority. Since they lack a deep education in conflict management, they will tend to market their position and substantive knowledge as their principal mediator qualifications. They may also claim substantial mediation experience. But while experience as a mediator is valuable, experience alone does not reflect style or success. Therefore it is less useful as a predictor.
Professional mediators, on the other hand, generally have extensive mediation training, and keep up with the latest mediation literature and trends. In marketing their services, they will emphasize their neutrality and skills in facilitating, rather than directing, resolution. Thus they will tend not to emphasize their substantive knowledge or position.
The practice of mediation has a long history and, just like most other public services, it continues to develop. It should not be reduced to a simple grid with four quadrants. Understanding the continuum that is mediation should help potential consumers demand the best from those calling themselves mediators. It should also lay a firmer foundation for credentialing and grievance processing. As Lela Love and Kimberlee Kovach have stated, “Knowing precisely the service that will be rendered, and the required skill set to deliver that service, is necessary to target the qualifications and training that will underpin credentialing. As mediation moves toward establishing professional qualifications, regulations and licensing, process definition, necessary intervener skills and knowledge must be identified so that evaluative instruments can be created.” [19]
If professionals in the field have learned anything from the recent debates, it is that a more theoretically sound model of mediation practice is necessary if the growing but divergent field of mediation is to meet the challenges of professionalism that are increasingly being thrust upon it.
Endnotes
1 See for example J. W. Stempel, Beyond formalism and false dichotomies: The need for institutionalizing a flexible concept of the mediator’s role. Florida State University Law Review, 1997, 24(4): 949. See also E. Galton, The preventable death of mediation. Dispute Resolution Magazine, 2002, 8(4): 23-25.
2 See L. Riskin, Understanding mediators’ orientations, strategies, and techniques: A grid for the perplexed. Harvard Negotiation Law Review, 1996, 1: 38.
3 See L.P Love and K. K. Kovach, Mapping mediation: The risks of Riskin’s Grid. Harvard Negotiation Law Review, 1998, 3, 71-110).
4 See W.W. Wilmot and J.L. Hocker, Interpersonal conflict (6th ed.). Boston: McGraw-Hill Higher Education, 2001, page 41.
5 For a now classic description of mediation, see Lon Fuller, Mediation: Its form and its functions. Southern California Law Review, 1971, 44: 305-339. For a discussion of how multiple goals apply in a typical medical malpractice suit, see C. M. Currie, Mediation and medical practice disputes. Mediation Quarterly, 1998, 15(3): 215-226.
6 See L. Riskin, Mediation and lawyers. Ohio State Law Journal, 1982, 43(1): 29-60.
7 For a fascinating study of how the role of the lawyer often conflicts with the lawyer as a moral individual and what is required to change who the lawyer is, see R. Jack and D.C. Jack, Moral vision and professional decisions: The changing values of women and men lawyers. New York: Cambridge University Press, 1989.
8 Christopher Moore refers to these high connection mediators as “social network mediators” and differentiates them from the low connection mediators (or “independent mediators”) who strive to be completely neutral and impartial. See C. Moore, The mediation process (2nd ed.). San Francisco: Jossey-Bass, 1996, p. 41. High connection mediators have also been known as “insider partial mediators.” See P. Wehr and J. P. Lederach, Mediating conflict in Central America. Journal of Peace Research, 1991, 28(1): 85-98. See also M. Olson and F. S. Pearson, Civil war characteristics, mediators, and resolution. Conflict Resolution Quarterly, 2002, 19(4), page 424.
9 For the supportive research see: L.C. Neilson, Mediators’ and lawyers’ perceptions of education and training in family mediation. Mediation Quarterly, 1994, 12(2): 165-184;
10 See R. Albert, Mediator expectations and professional training: Implications for teaching dispute resolution. Missouri Journal of Dispute Resolution, 1985, 73-87; and K. W. Marcel and P. Wiseman, Why we teach law students to mediate. Missouri Journal of Dispute Resolution, 1987, 77-87.
11 See P. J. D. Carnevale, R. G. Lim, and M. E. McLaughlin, Contingent mediator behavior and its effectiveness. In Mediation Research, edited by K. Kressel and D.G. Pruitt. San Francisco: Jossey-Bass, 1989, p. 237.
12 Christopher Moore refers to highly authoritative mediators as “vested interest mediators” (see Moore, note 8), while William P. Smith calls them simply “biased mediators.” See W. P. Smith, Effectiveness of the biased mediator. Negotiation Journal, 1985, 1(4): 363-372. 1985). They typically mediate international conflicts between opposing countries.
13 See S. Touval and I. W. Zartman, International mediation in the post-cold war era. In Turbulent peace: The challenges of managing international conflict edited by C.A. Crocker, F.O. Hampson, and P. Aall. Washington, D.C.: U.S. Institute of Peace Press, 2001.
14 See D. M. Kolb and Associates, When talk works: Profiles of mediators. San Francisco: Jossey-Bass, 1994, p. 395.
15 See M. Watkins and K. Winters, Intervenors with interests and power. Negotiation Journal, 1997, 13(2): 119-142; S. S. Silbey and S. E. Merry, Mediator settlement strategies. Law & Policy, 1986, 8(1): 7-32.; J. A. Wall, Jr. Community mediation in China and Korea: Some similarities and differences. Negotiation Journal, 1993, 9(2): 141-153.
16 See S. E. Merry, Mediation in nonindustrial societies. In Mediation Research edited by K. Kressel and D.G. Pruitt. San Francisco: Jossey-Bass, 1989.
17 See J. W. Cooley, Shifting paradigms: The unauthorized practice of law or the authorized practice of ADR. Dispute Resolution Journal, 2000, 55(3): 72-79.
18 See also Neilson, note 9, page 180. For a look at how mediation borrows from a wide variety of disciplines, see D. M. Kolb and J. Z. Rubin, Mediation through a disciplinary prism. In Research on Negotiation in Organizations edited by R. Lewicki, B. Sheppard, and M. Bazerman. Vol. 3. Greenwich, Conn.: JAI Press, 1991.
19 See L.P. Love and K. K. Kovach, ADR: An eclectic array of processes, rather than one eclectic process. Journal of Dispute Resolution, 2000, (2), page 298.
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