In the Spring 2009 issue of Conflict Resolution Quarterly appears an article by Charkoudian, de Ritis, Buck and Wilson entitled, Mediation by Any Other Name Would Smell as Sweet, or Would It? The Struggle to Define Approaches to Mediation. (Vol. 23 Issue 3, p.293.)
The authors conducted two studies reasonably contemporaneously, and report them together.
In the first, they collect self-reported descriptions from mediator about the styles they adopt in mediations. Most of those data tended to show that mediators do a bunch of everything in their mediations–perhaps suggesting that the labels are over-stated, that distinctions are emphasized more in theory than in practice.
In the second, they use observational data from a different set of mediators, most of which tended to show that mediators who are directive are really directive, and mediators who are facilitative are really facilitative–perhaps suggesting that competing models are, in fact, competing, and that one cannot (or at least does not) do them often in the same mediation.
The data and interesting, as are the studies. I’m not entirely persuaded that the two studies are as linked as the authors suggest, though I agree with their conclusion that the combination of these studies (and a mound of other evidence) “do give pause for reflection and suggest that mediators may want to consider carefully how they describe their approaches to mediation, and whether or not the stated description matches what they actually do.” I have every confidence that mediators don’t always do what they say they do.
What would interest me enormously would be a study that began to unpack WHY mediators make the choices they make. I care far less that a self-described facilitative mediator suggested an option or pondered a non-settlement alternative that I care what the thought process was that led to that decision. I suspect, without knowing, that answers to those kinds of questions would cluster around diagnostic assessment categories, rather than model-driven norms. THAT would be interesting.
Michael Moffitt
The link below will take readers directly to the article, which actually appears in volume 26 of the journal (not volume 23 as I had written):
http://www3.interscience.wiley.com/user/accessdenied?ID=122275554&Act=2138&Code=4719&Page=/cgi-bin/fulltext/122275554/PDFSTART
Thanks John.
As is often the case, I am on the same wavelength as you, Michael. I share your skepticism about the accuracy of the facilitative – evaluative (and similar) labels. For one thing, “evaluation” is actually a combination of giving an analysis of case (including strengths and weaknesses), making predictions about likely court results, suggesting possible ways to resolve issues, and recommending a specific settlement. Moreover, I think what bothers many people about “it” is not even explicitly on the list – whether mediators apply pressure on the parties – which some people assume to occur whenever mediators use these behaviors. I believe that mediators do have general orientations and behavior patterns but that doesn’t reflect the contextual nature of mediator behvavior.
The Task Force on Improving Mediation Quality of the ABA Section of Dispute Resolution did a survey of experienced civil litigators and mediators and found that the two groups had different opinions about the different behaviors considered as evaluative and that within each group, there were differences as well. See http://www.abanet.org/dch/committee.cfm?com=DR020600 (with results summarized in a short article, “Doing the Best Mediation You Can”). Moreover, substantial majorities of both groups said that all of the following factors might affect their judgment about the appropriateness of a mediator giving an assessment of the strengths and weaknesses of a case:
• whether the assessment is explicitly requested
• the extent of the mediator’s knowledge and expertise
• the degree of confidence the mediator expresses in the assessment
• the degree of pressure the mediator exerts on people to accept the assessment
• whether the assessment is given in joint session or caucus
• how early or late in process the assessment is given
• whether the assessment is given before apparent impasse or only after impasse
• the nature of issues (e.g., legal, financial, emotional)
• whether all counsel seem competent
• whether the mediator seems impartial
The subjects were asked about their cases, where all parties were presumably represented in the vast majority of cases. The presence or absence of lawyers would presumably be another factor that would affect opinions about appropriate mediator behaviors.
I think that this reflects a reality that mediator decisions about whether, when, and how to make different moves are very context-specific and often related to the perceived needs and desires of the parties and lawyers. Moreover, I believe that many mediators do a wide range of behaviors that they often are not aware of.
For me, the most practical approach to problems related to mediator style involves negotiation about mediation procedures between mediators, parties, and attorneys (for cases involving mediation). If appropriate, it would be good to start those conversations before everyone convenes for the joint mediation session. Regardless of whether there are such conversations before the first session, it would be good to have them during mediations as appropriate. This is the essence of the ABA’s Task Force and Len Riskin’s recommendations.
When Riskin revised his grid, he renamed the facilitation – evaluation dimension as party/lawyer-influenced and mediator-influenced, reflecting the fact that these are not necessarily all-or-nothing decisions by parties, lawyers, or mediators, but rather they often involve shared decision-making falling somewhere in the middle of the continuum. Instead of trying to come up with ideal labels or locate a mediator or mediation at some point on a grid, I think it would be more helpful to encourage mediators, lawyers, and parties to engage in more procedural negotiation about what procedures are and are not desired in a particular case or situation.
A side note on terminology: When people use new labels for “evaluative” and “facilitative,” they usually use “elicitive” and “directive.” In Len’s article, he called these the “new old” labels, which he thought were better than the old labels but not as good as his “new new” labels, which he recommends. I have seen a lot of people use elicitive-directive terminology, but I can’t recall seeing anyone but Len use party/lawyer- and mediator-influenced.