The classic definition of a mediator is one who, without decision-making authority, assists in the resolution of a dispute between two or more others, Mediation is everywhere; moms do it for their kids, kids do it for their friends, bosses do it for their workers, and so on. Have you tried to calm an argument between friends? You’ve mediated. Over time, this normal human response to conflict has evolved into a profession.
The 1960’s brought forth the community mediation movement. Its philosophy was that parties in conflict should control their own destinies, and that ceding control to disputants would allow them to discover workable solutions they could live with, and teach them that they could solve problems independently of authority figures. This concept was referred to as ‘empowerment.’ Community mediation featured volunteer neutrals who strove only to understand the causes and effects of the dispute, improve communication, and create an atmosphere in which the parties could resolve things. Being more involved would be contrary to the empowerment philosophy.
The flood of litigation in the 1970’s and 1980’s made courts look for ways to stem the tide. The Federal courts had experimented with settlement beginning in the 1920’s. By the 1970’s there was “a forthright and ardent embrace of active participation in settlement negotiations… based on a warm endorsement of settlement as preferable to adjudication…” This model of settlement is markedly different from community mediation. In contrast to the “hands off” practices promoting party empowerment, judges (and the lawyers who emulated them) are used to being in charge, the expert in the room. They promote settlement by highlighting the risks of not settling. Usually this means evaluating the parties’ likelihood of success at trial, and predicting results. Every case has flaws, and mediators of this school are adept at pointing them out.
It’s easy to define what professional mediators do – help resolve disputes. But because there are different schools of thought and no licensure requirements or generally accepted definitions of the “right” way to mediate, it’s very hard to give a concise, coherent explanation of how they do it. That doesn’t stop people from trying.
Those who learn about, teach, or use mediation on a regular basis have most likely been the exposed to the “Riskin Grid.” Professor Leonard Riskin was asked explain how to prepare for mediation. He realized that in order to do so he needed to take into account, and be able to explain, the broad spectrum of mediating behavior. His original grid attempted to graph two mediator characteristics: (a) The degree of authority the mediator asserts, and (b) The breadth of the problem focus.
The vertical axis of the grid concerns authority of the mediator, and the runs from ‘evaluative’ to ‘facilitative’ The term “evaluative mediation” refers, in its purest form, to a ‘subject-matter expert’ mediator’s practice of determining the strengths and weaknesses of each position, communicating the (allegedly massive) flaws in one’s position, and predicting the (usually dire) consequences of continuing to adjudication, and suggesting the appropriate settlement. The evaluative mediator judges, teaches, and tells.
Evaluative mediators are likely to be subject-matter experts, while facilitative mediators need not be. Facilitative mediators focus on providing a process that increases communication, and fosters understanding. They expect parties to be experts about their own situations. The facilitative mediator investigates, learns, and asks. Instead of predicting, he or she asks the parties to think realistically about, and to predict the outcomes. Instead of suggesting solutions, he or she asks questions to help the parties come up with alternatives.
The horizontal axis concerns the breadth of the mediator’s focus. Narrow focus concerns only the litigation merits of the present dispute, for example an auto accident between strangers whose interests do not otherwise mesh. Somewhat broader focus could result if the disputants shared actual or potential business connections – a case could be dismissed in return for a favorable contract. Personal issues can broaden the issue still further. Emotional barriers to settlement such as anger or resentment are a good example. At the broad end of the continuum are societal issues, such as bargaining for institutional change so others don’t suffer the same fate, broadens things still further. Riskin has depicted the concept graphically as follows in a Harvard Negotiation Law Review Article released in the Spring of 1996:
Professor Riskin later provided a helpful update to the grid in which he listed the techniques that each type of mediator might use:
Riskin suggested in his original article that a skilled mediator might be able to move within each of the four quarters of the grid. He maintained that position in the Harvard article. He had previously observed that evaluators facilitate more readily than facilitators evaluate, and that it seems easier to move from broad to narrow than vice versa.
Despite the fact that the Grid was intended only as an explanatory tool that could help select a mediator, and perhaps also spur conversation and self-awareness among practitioners, these simple concepts led to a great deal of controversy among dispute-resolution theorists. Some argued that mediators should not be permitted to evaluate, others that evaluation was what a great many disputants wanted and needed, and still others that the evaluative mediation seen so often in litigated cases was not mediation at all, insisting it be called something else, perhaps “conciliation.”
To those who wish to exclude evaluative behavior from the definition of mediation, Riskin says: “It is too late for commentators or mediation organizations to tell practitioners who are widely recognized as mediators that they are not, in the same sense that it is too late for the Pizza Association of Naples, Italy to tell Domino’s that its product is not the genuine article “. There are a variety of other complaints from academics.
Riskin himself was not completely happy with the Grid. In 2003, he wrote to correct imperfect terminology (substituting “directive” for “evaluative” and “elicitive” for “facilitative”)
To this most would say what he said about Naples pizza-makers – too late, the other way of doing things is deeply ingrained. ‘Evaluative” and “facilitative” are mediators’ terms of art, which mediation consumers also know. Riskin also drew a distinction between procedural decision-making and substantive decision-making, and attempted to capture the fourth dimension [time] with a series of grids. Though interesting, it has not caught on.
However, the report of a videotaped Harvard study involving the grids-over-time idea demonstrates what some knew intuitively. The behavior of skilled mediators changes not only between mediations in response to the parties’ needs, it also changes within the mediation as the mediator believes a new tactic is required.
Finally, in 2005, Riskin put forth his final journey into the grid system, showing that any number of decisions could be graphed in a systematic way, showing the relationship and predispositions.
Again, the approach does not seem to have caught the imagination of the mediation community in the way the 1994 and 1996 essays did.
Conclusion
Despite much criticism, the early Riskin Grids captured mediation concepts in a way everyone could fathom. They also provided a common vocabulary for the mediation field, and provoked much thought and conversation.
In these ways they were and will continue to be.
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