Mediation is a unique way of resolving a dispute. While Arbitration and Litigation focus on a person authorizing or “handing down” a decision to resolve a conflict, negotiation and mediation are about parties coming together to resolve a dispute. Unlike negotiations, mediation involves a neutral or advocate who assists the parties. As illustrated in the Riskin model, mediators use various methods and styles.
A mediator must be able to navigate from Seattle (Narrow and Evaluative) to Los Angeles (Narrow and Facilitative) to Boston (Broad and Evaluative) to Atlanta (Broad and Facilitative) according to the situation and according to each party’s needs.
Evaluative mediators give opinions and tell the parties to listen because of inherent authority. In contrast, facilitative mediators do not reveal their opinions or dictate the outcome; instead, the facilitative mediator allows the parties to realize the solutions themselves. Mediators who frame the problem in a narrow method examine the dispute as a single legal issue and help the parties to craft a “deal” in the shadow of the law. On the other hand, mediators who frame the problem in a broad method tend to ask different questions and look at underlying interests and needs in order to solve the problem holistically. Riskin’s model is just one of many models but it sheds light on the mediation process and the mediator role.
Parties may face a dilemma as they attempt to select a certain type of mediator. The personal style of the mediator is often unknown; thus, it is hard for people in a conflict to hire a mediator with the transparency necessary to make an informed decision regarding the type of mediation. Mediation is very young. The field has not developed criteria to label mediator styles. Consequently, a party may enter mediation and discover that the mediator is evaluative when in fact the party wanted the mediation to be handled in a more facilitative manner. Fortunately, this problem is eroding as the public becomes more informed about mediation and more knowledgeable about the styles. As more and more parties become familiar with mediation, parties will tell the mediator what they are looking for and they will ask the mediator what his or her general style is.
Riskin’s model highlight issues that arise regarding manipulation. There is no doubt that evaluative mediators stronghold the parties by telling them what to do. In contrast, facilitative mediators appear to minimize manipulation; however, facilitative mediators still use manipulation in the mediation process albeit more subtly as they lead the parties in certain directions. At least evaluative mediators are upfront about leading clients in one direction!
It is important for a mediator to understand her natural “autopilot” tendencies. The mediator cannot allow her personality to affect decisions that are made that shape the outcome of the mediation process. For example, a mediator’s tendency to avoid conflict may tint the progress of a mediated settlement. Consequently, a mediator must understand whether she or he has a natural tendency to make decisions in the mediation to avoid conflict. If this is the case, a mediator must recognize this tendency and then take steps to alter the conflict-avoidant type of behavior in certain situations. Only when a mediator learns his or her natural style, can the mediator begin to use other styles and move between the various approaches as necessary.
Riskin’s model does not address every aspect of mediation nor does it specify which city is the best. However, in knowing one’s “autopilot,” an individual can focus on learning various techniques that allow the mediator to maneuver from one “city” to the next as necessary in any given mediation.