Facilitative? Evaluative? The struggle to define the practice of mediation

Recently I criticized a call by Stephen Erickson of the Association for Conflict Resolution to establish a certification system for mediators.  (Lively discussion ensued, and people have continued to weigh in, so please feel free to contribute.)

According to Erickson, facilitative mediation is “good” and evaluative mediation, by inference, is bad, since evaluative mediation undermines self-determination, a core principle of mediation practice.

I responded by insisting that we owe it to our profession to bring greater nuance to our debate about mediation practice and credentialing, and not privilege one style of practice over another, reducing the debate to little more than facilitative-good/evaluative-bad.

But my main point was that we mediators need to do a much better job educating the public about what we do and how we practice so that parties can make informed decisions about choosing the approach – facilitative, transformative, evaluative, narrative, understanding-based, or a hybrid of approaches  — that best fits their dispute.

However, just because we strive to be inclusive in discussing these issues does not mean that we check our critical faculties at the door.  Evaluative mediation certainly has its uses, but it does have its shortcomings, too, as Len Riskin and Nancy Welsh described recently in their article, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“, since that approach allows the preferences of lawyers and insurance adjusters to dominate and  narrows discussion to legal and economic interests, while disregarding a whole range of other concerns — emotional, interpersonal, behavioral, community — that are no less integral.

Similarly, in “Moving Mediation Back Toward its Historic Roots – Suggested Changes” (in PDF), Joseph P. McMahon, Jr., criticizes the law-centered, “low functioning” approach to mediation that increasingly the legal community has come to accept, characterized by separation of parties with no opportunity for direct dialogue, a focus on monetizing the dispute, while legal issues take precedence over the parties’ own narratives and personal experience as the mediator-expert directs the parties toward settlement. McMahon advocates revolution, overthrowing one model in favor of another.  McMahon proposes a solution that restores face-to-face dialogue to its rightful place and returns power to the parties by engaging them in designing a process and an outcome that will best serve their needs.

Unfortunately, public perception remains otherwise.  In the popular imagination, the all-powerful mediator shuttles back and forth between separate rooms, controlling the flow of information between parties, and withholding food and drink (and maybe even bathroom breaks) while cajoling or pressuring the parties into accepting a deal.  This became amply clear to me over the weekend when Boston Globe Magazine profiled a local mediator.  Here’s the picture of mediation the Globe painted for its readers:

Here’s how mediation works: In a civil dispute, going to trial is always risky. Verdicts can either force defendants to pay astronomical amounts or leave plaintiffs without a penny. And so people often decide they’d rather settle — if they can agree on a price. The parties then choose a mediator — both sides must agree on the person — and the process begins, behind closed doors, with both sides stating their cases and demands. Then the mediator separates the two sides into different rooms and begins shuttling back and forth between them. If mediation fails, the parties can agree on another mediator, or the case goes to trial….In mediations, lawyers need someone with a sharp legal mind who’s not afraid to nudge, push, and just plain tell people when they’re wrong…

It’s all there – the shuttle diplomacy behind closed doors, the focus on price, and a process conducted within the long shadow of the courthouse as lawyers wheel and deal. Go read it for yourself. Plainly this tough-headed mediator has earned the title “closer”, brokering deals and producing settlements of the economic and legal issues (if not, perhaps, the less tangible ones). All well and good if that’s what lawyers and their clients truly want – after knowing all the options.  But how can we be sure that the public appreciates the difference, when even journalists – trained, professional observers – miss it?

And so I must also ask – can we really call this “mediation”?

10 responses to “Facilitative? Evaluative? The struggle to define the practice of mediation

  1. Diane,

    I knew I could count on you to bring some needed perspective to an otherwise irritating, but well circulated, article.

    Stuart

  2. Diane, the Boston Globe article describes a well known dispute resolution methodology, first made popular by Jim Freund.

    There is nothing wrong with this method, negotiating in the shadow of the law as it were.

    Freund, among others, emphasize the concreteness of the positional dance. Sometimes those intent on focusing on creating value miss the necessary steps in the positional dance. Freund was all creating the dance steps that lead to a deal, my recollection is that there is a nice discussion of this in Negotiation by Spangle and Isenhart.

    And thank goodness for Google, here is a snippet of that discussion:

    http://books.google.ca/books?id=_9jzWCwkRnAC&pg=PA60&lpg=PA60&dq=james+freund+attorney&source=bl&ots=ywpYPbri1e&sig=_gFTf42Nb3jdi126V78ae5VnBio&hl=en&ei=b0jjSdzaBZHEM5K7qYEJ&sa=X&oi=book_result&ct=result&resnum=2#PPA69,M1

  3. Stuart, thanks. I imagine that you and I are not alone in our reactions to that article. It did our field no service by presenting a one-sided view of mediation practice.

    Michael, thanks for the link to the Google article. The internet is a beautiful thing. However, I am not suggesting there’s necessarily anything wrong, as you say, with the method used by this mediator and others like him who practice evaluative mediation. (In fact, maybe we shouldn’t even be calling this mediation. Informal arbitration maybe or settlement conference. But mediation it ain’t.) I know it’s common practice, and no doubt, in some cases, fits the dispute and the parties’ needs. And I am also well aware of the counterpoints to and valid criticisms of facilitative mediation. That’s not the issue nor my point. As in my criticism of Erickson’s call for credentialing, I believe that parties need to be able to make informed decisions about the process they choose — and that includes information about the differences, benefits, and down sides associated with each of the models of mediation practice. My big beef with the Globe article is the failure of the reporter to fully research his subject. What we’re left with is an uncritical, uninformed, one-dimensional portrait of mediation practice. Good publicity for the mediator but bad news for the profession.

  4. I agree that this article was not a good representation of mediation or mediators. I also agree with Diane that the example in the article was definitely NOT mediation.

    People are so distrustful of the legal professions, and mediators (by proximity) get lumped in with them. When many mediators, including myself, entered this profession because people could not count of “legal professionals” to assist them towards an acceptable outcome that didn’t place everything they cared about at risk.

  5. Diane;

    Interesting reaction about whether or not it “is” mediation. I would have thought that all mediators needed to know something about what others have called the “positional dance” to solve conflicts, whether primarily evaluative or facilitative. Am I wrong about this?

  6. This issue is one of the most important we as mediators must discuss. Mediation is an “alternative dispute resolution ” process and the notion that there is a right way and wrong suggests vitiates the substiutes “another ” for “alternative ” . Disputes are are result iof differences of opinion and if the opinion is not impacted by the mediation the dispute continues – some must evaluate other need a to be facilated . Who are we to say if one is right and the other wrong ?

  7. Michael, you’re not wrong at all. I agree – mediators absolutely do need to understand positional bargaining. I like the metaphor of dance, although I have to say I think of it more as a boxing match with punches, jabs, and feints. Float like a butterfly, sting like a bee…. I’m not saying otherwise. I suppose if we loosely define mediation as “assisted negotiation”, then settlement conferences and informal arbitration do count. But I’m just not sure.

    Roger, thanks for your comment, and great to see you here. In looking at facilitative v. evaluative mediation, I’m not saying whether one is right or one is wrong. That’s going to depend upon the dispute. As Frank Sander once said, let the forum fit the fuss. But that doesn’t mean we should suspend our judgment or withhold our opinions. Let’s look critically at all models. What I am saying is this:

    1) Mediators better be clear what it is that they’re providing so that parties can choose wisely. Informed decision making is critical.

    2) Misperceptions in the public mind abound about mediation. The public is far more familiar with law-centered evaluative mediation than other models of practice. The Boston Globe article hasn’t helped.

  8. Twenty plus years ago I wrote an article – can’t remember where – that said we had already lost the battle of nomenclature. Mediation is mediation is mediation by any other name. Public and media perception is that mediation involves shuttle negotiation, someone pressuring participants and putting out their own valuations, telling parties what to do…all the hallmarks of legal mediation, which is what many lawyers want and are used to. There is nothing wrong with this if it is informed choice.

    Let’s look at it from a different angle, however. Since lawyers choose mediators in litigated cases and since this style of mediation is fairly typical of that used in many litigated cases, are lawyers going to stop choosing this if they 1) really want a quick settlement, 2) believe that the “other” kind of mediation is “touch-feely,” and 3) their clients have no clue?

    I teach mediation in 2 law schools and many of my current and former students attend mediation with the type of mediator described in the Boston Globe article. My email often contains stories of such mediation styles that are no longer satisfying mediation savvy attorneys. And, I get many requests for information about mediators for various cases from former students and friends who want to stay away from just such situations.

    The public, in this case, is really lawyers. They choose the mediators who provide mediation in this type of litigated case. We need to educate those who select the mediators and we need to do it at the earliest possible time – law school.

  9. Diane,
    I could not agree with you more… in fact… more than ever! The Globe has played it’s role as a media source in continuing to “reinforce” the stereotype meditation to the public and other “mediation practice” perceptions of what has been set forth by the legal community as the only proprietary form of ADR or Legal ADR as I have come to interpret it. The differentiation between mediation and arbitration as practiced by the legal community is “gray” and confusing to prospective consumers seeking solutions in light of what is suppose to really happen in a mediation versus arbitration. Legal practicioners have difficulty “playing the proper role” and end up being a “judge” instead of having the patience to let go of “control” and let people work face to face in a true, open and transparent meditation structure. It’s going to take years to break down the perceptions, but I still, am holding firm, still believe there is TODAY the new opportunity for the public to see a real change and different approach in contrast to the Globe’s idea.

  10. Ericka and Clayton, sorry for the delay in responding. I’m afraid I got a little behind on my web 2.0 duties. Both of you are making similar points – our field needs to do a far better job helping the public – and that includes lawyers and particularly their clients – get a clue when it comes to the choices available. It’s I think one of our field’s failures – our seeming inability to adequately educate consumers of ADR services. But this is but one public perception problem. The other of course is the persistent and absurd notion that negotiation signals weakness. I suspect that these two issues are somehow related. But we can and must do better. Thanks for your comments.

    P.S. Ericka, you and I have had numerous offline conversations about this. How about we translate talk into action? I’m game. ;)

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