Respecting Rival Mediation Philosophies

In ideological terms, mediation theory and practice is in the middle of a tug of war.

The market for mediation services is quite diverse and is now in the process of institutionalization.
Theorists and market participants are struggling to develop what they hope will become a generally
accepted vocabulary reflecting distinctions within the market. This institutionalization process entails
both the conscious activity of “intellectual entrepreneurs” (such as promoters of mediation services,
policy makers, and academic theorists and researchers) and the less-conscious interactions of
individual buyers and sellers in the market.

Over time, some ideas predominate, while others fall into disuse. Institutionalization processes
occur in relatively unsettled situations with bursts of ideological activism in which ideologies compete
for dominance. After these ideological contests are settled, actions are guided by taken-for-granted
traditions and what is perceived as common sense.

Right now, there is a lot of activity. We clearly are in the middle of a period of ideological contest.

Debates and Practices

Arguments over terminology are not just academic exercises. These debates shape actual practices
of mediators regarding what it means to be a good practitioner, referring to shared meanings and
norms within one’s practice community. For example, if the facilitative-evaluative distinction
described below gains currency, mediation shoppers may base their selection of mediators on
perceptions along this dimension.

Accordingly, mediators may feel compelled to define and enact their techniques to comport with
what they believe to be good facilitative or evaluative practice, as the case may be. Many
practitioners want to follow the predominant norms of their practice community (e.g., use an
evaluative or facilitative approach if everyone else seems to be doing it), though some practitioners
may wish to create a niche in the market by offering an alternative to the majority practice. Whatever
one’s strategy and however conscious it may be, a practitioner’s professional activities are likely to
be affected by the particular conceptions commonly used in their practice communities.

A fundamental issue in the institutionalization of mediation is whether there should be a single,
relatively pure, conception of mediation that is appropriate for all mediators–which I call the
“single-school” view–or whether a variety of conceptions should be accepted as legitimate, which
I refer to as the “pluralist” view. In this article, I advocate a pluralist conception of mediation and
suggest some steps to enhance the value of differing approaches in mediation.

Single-School Perspectives

The “single-school” view seems to be quite popular among mediators, judging from casual
conversations I have heard at gatherings of mediators, though single-school mediators differ as to
just what that school should be. One of the common distinctions is between facilitative and evaluative
styles of mediation. See Riskin, “Mediator Orientations, Strategies and Techniques,” 12 Alternatives
11 (September 1994). There also is an important debate about the merits (or lack thereof) of these
two styles. See Kovach and Love, “‘Evaluative’ Mediation is an Oxymoron,” 14 Alternatives 31
(March 1996), and Bickerman, “An Evaluative Mediator Responds,” 14 Alternatives 70 (June 1996).
Although this distinction is better conceived as a continuum rather than a dichotomy, the polar
distinctions can be a useful tool if not taken too literally. I have heard numerous mediators distinguish
what they believe to be “good mediation” or “real mediation” from what they consider substandard
mediation practice.

Advocates of a facilitative philosophy raise serious concerns about disputants’ confusion stemming
from what to expect from mediation, the quality of dispute resolution processes using evaluative
techniques, and the potential for coercion. Some adherents of this view reluctantly accept the
legitimacy of what they view as substandard mediation practices but plead “Just don’t call it
mediation!” They prefer instead terms such as “mediation-arbitration,” “nonbinding arbitration,”
“neutral case evaluation,” or “private settlement conferences.”

More colloquially, evaluative mediators are sometimes called “muscle mediators,” “Rambo
mediators,” “Attila the mediators,” or mediators who will “knock some sense” into the negotiators by
“banging their heads together” or “twisting their arms.”

On the other hand, advocates of an evaluative style of mediation raise serious concerns that a
significant proportion of negotiators do not want and would not respond well to a facilitative mediation
style. Proponents of this view note that it may be difficult to accurately characterize a process with
a single word when the process may vary between cases and even within a single case. Evaluative
mediators sometimes dismiss proponents of a facilitative approach as being out of touch with the
way the world really works. They describe a facilitative style as soft, weak, “touchy-feely,”
“therapeutic,” “new-agey,” and even a “potted plant” approach to mediation.

The issue of mediator evaluation stirs fervent passions of theorists and practitioners alike. The
unflattering characterizations clearly rankle proponents committed to the differing views. For
example, I have heard facilitative mediators take umbrage about such characterizations of their
approach. Facilitative-style mediators complain that lawyers press them to tell the disputants “how
much the case is worth” and get quite frustrated if they do not do so.

There also are related differences regarding the appropriate goals of mediation. Some mediators
believe that disputants are primarily interested in ending their disputes, and thus settlement is the
only or primary goal of mediation. In this view, any settlement is a success and not settling is,
inherently, a failure. Some believe that other values are more important than simply whether a
dispute is settled. Some hold that the unique values of mediation are its potentials to empower
individual disputants and to encourage mutual recognition between disputants. Yet others argue that
the goal of mediation should be to assist disputants to craft not just any settlement but one that
optimally and jointly satisfies their underlying interests. Others focus on enhancing relationships and
protecting disputants and third parties from harm. While this is probably not an exhaustive list of what
mediators see as the primary goals of mediation, it does reflect some of the major, and strongly-felt,
differences about what the goals of the enterprise should be.

Respect for Different Styles and Philosophies

I am skeptical of a single-school approach for both philosophical and pragmatic reasons. My
mediation philosophy preference leans toward a facilitative approach that promotes negotiators’
exercise of responsibility in decision-making. But I am a pluralist because I believe that it is important
to have a diverse market that offers a wide variety of legitimate options for mediation buyers and
sellers.

As a practical matter, I doubt that it is possible either to limit the style of mediator practices or to
enforce a single-school usage of the term mediation. Rather than trying to maintain distinctions about
what is and isn’t real mediation, I think that it would be more productive to try to concretely define
distinct varieties of mediation in ways that are clearly recognizable by participants in the mediation
market. While this would be no easy task in itself, I believe that it is more likely to be successful and
productive.

I encourage mediators to embrace a great diversity of practices. Mediators of various persuasions
have good reasons to hold their values and also have legitimate concerns about the implications of
other philosophies. I believe that there is some merit to most mediation philosophies and that we
should resist the temptation to elevate our own approach as “real” mediation and denigrate others
as false substitutes that should not share the mediation franchise. Though disparaging other
approaches may feel satisfying temporarily, I am convinced that it is a counterproductive long-term
strategy. It is unlikely that any camp will prevail completely and if perchance one did, mediators and,
most important, disputants, would lose the precious values of diversity and choice.

Instead, I suggest that it would be much more helpful for adherents of differing mediation
philosophies in local mediation communities to respectfully work together to concretely classify their
differences as an aid to mediation consumers. There are various ways that mediators could do this.
One would be to observe and then discuss each other’s work. Another way would be to participate
in peer consultation groups to discuss mediation cases, styles, and techniques. A third way would
be to operate a speaker’s bureau or other public education program. I participated in a group that
developed a training for speakers and directory of local mediators. The discussions to decide how
to present mediation to our community helped identify relevant distinctions between mediation
services.

I suggest that mediators primarily committed to a facilitative philosophy appreciate the values of
settlement and efficiency in mediation, especially for disputants making informed choices to select
mediators with those orientations. If mediators provide reasonable disclosure to principals about their
procedures and get consents to use the procedures, these are legitimate choices that should be
respected. See Mazadoorian, “Disclosure Questions for ADR Counsel to Ask When Choosing
Neutrals or Provider Groups,” 14 Alternatives 95 (September 1996).

At the same time, I hope that evaluation-oriented mediators will appreciate that disputants may
have goals that they value as much as or more than settlement itself. Rather than assuming that
settlement is the only or primary goal, these mediators should assess and respect the disputants’
goals and priorities.

All mediators should become more aware of their own mediation styles and philosophies and
describe them clearly, both in the hiring process and the mediation process itself.

                       

John Lande

John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California.… MORE >