Comments on: Facilitative? Evaluative? The struggle to define the practice of mediation

By: Diane Levin

Diane Levin — Thu, 30 Apr 2009 14:04:58 +0000

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.

By: Clayton Gilman

Clayton Gilman — Thu, 16 Apr 2009 23:00:33 +0000

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.

By: Ericka Gray

Ericka Gray — Wed, 15 Apr 2009 11:07:14 +0000

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.

By: Diane Levin

Diane Levin — Wed, 15 Apr 2009 01:04:45 +0000

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.

By: roger lenneberg

roger lenneberg — Tue, 14 Apr 2009 18:19:55 +0000

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 ?

By: michael webster

michael webster — Tue, 14 Apr 2009 18:14:40 +0000

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?

By: Angela

Angela — Tue, 14 Apr 2009 14:14:02 +0000

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.

By: Diane Levin

Diane Levin — Tue, 14 Apr 2009 11:48:56 +0000

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.

By: michael webster

michael webster — Mon, 13 Apr 2009 23:19:43 +0000

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

By: Stuart Snyder

Stuart Snyder — Mon, 13 Apr 2009 20:20:34 +0000

Diane,

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

Stuart