Performance-Based Assessment: a Methodology
Chapter 3: Conceptions of Mediation
The full document was originally published by the National Institute for Dispute Resolution, and is now available without charge as an Adobe Acrobat (.pdf) file.
From Fuller's epochal (1971) essay to the present, visions of what a mediator is, might be or ought to be have proliferated. For anyone contemplating the introduction of any kind of standard, complicating factors abound; nearly every criterion of a mediator's job which has been articulated has also been disputed.
For example, a lay person might find blameless a traditional definition of a mediator which goes something like this: "a neutral third party with no power over the parties, who attempts to help them settle their dispute." Yet such a definition immediately triggers at least four well-known objections. In the first, a succession of scholars of the mediation process identify a series of behaviors commonly engaged in by mediators which are not "neutral" in their effects on the parties. Mediators cannot, says this line of thought, be neutral, and should make no such claims. (See, for instance, Cobb and Rifkin, 1991, and Silbey, 1993).
Similarly, many observers have denied that mediators are "powerless"—or that they refrain from exercising power of various kinds. (See, for instance, Greatbatch and Dingwall, 1989). Even the concept that what causes the mediator to be summoned in the first place should be capsulated as a "dispute" invites challenge, from those observers who are less interested in the specifics than in the parties' long-term relationships—to each other or even to society.
And fourth, a respected line of argument holds that "settlement" is neither mediation's exclusive property nor its highest and best use, contending that other dispute resolution processes may be as efficacious in securing settlement, but that mediation alone provides the opportunity for parties to address their conflicts in a way that strengthens both their self-reliance and their consideration for others (and hence helps them to deal with similar problems in the future).
This view, best articulated in Bush and Folger (1994), holds that the drive toward settlement or problem-solving, while serving powerful social needs, neglects the most important dimension of the mediation process- -its potential to change people themselves, in the very midst of conflict, giving them both a greater sense of their own efficacy and a greater openness to others. The settlement-oriented majority of mediators and mediation programs are thus seen as missing the greatest potential of the field: its capacity for the transformative.
There is a potential price to be paid for the "transformative" approach. Simply put, it is widely perceived that it takes longer, at least when large groups are involved on one or both sides. It thus may impose greater transaction costs both on the parties and on the program. But there is also a potential price to be paid for the "settlement- oriented" approach, because a focus on the short term may leave the parties unenlightened as to patterns of behavior which are likely to lead to other disputes in the future; at the extreme, it may even leave them hungry for another crack at each other.
Two trains of thought in the mediation literature have sought to resolve these conflicts. Both are useful here. The first such view is a matrix consisting of two continua, resulting in four possible "quadrants" in which a given mediator might operate. One continuum is defined at its extremes as evaluative and facilitative; the other, as broad and narrow. (Riskin, 1994 and 1995).
In this view, mediators with a narrow focus assume that the parties have come to them for help in solving a relatively technical problem. Often, these problems are defined in advance by the parties, and take forms such as "who pays how much to whom?" Mediators with a broad focus, however, are seen as assuming that the parties might benefit if the mediation goes beyond the issues that normally define legal proceedings, and they attempt to discern and help the parties fulfill underlying interests. These contrasting purposes do not define an either/or; they are the ends of a continuum.
The two other defining characteristics of this view also form a continuum. The (most) evaluative mediator assumes that the parties want and need the mediator to provide some direction as to the appropriate grounds for settlement; the (most) facilitative mediator assumes that the principal mission is to enhance and clarify communication between the parties in order to help them decide what to do.
This way of categorizing mediators has the virtue of explaining some wide variations in behavior: A mediator inclined toward the facilitative and broad, for instance, is concerned with the parties' overall relationship, and seeks to help the parties improve that relationship by means which put the maximum possible control in the parties' own hands. An evaluative/narrow mediator, by the same token, believes the parties have retained him or her because what is wanted is specific and expert guidance toward a prompt settlement in a particular case.
The other approach is to describe a common core of behavior which many mediators engage in. This can be broken down into a series of criteria which are explicitly admitted to contain values which are not universally shared—but which also provide the seeds of alternate criteria which programs may substitute in a "seasoning to taste" process. The common core approach was the origin of this project, and continues to be the primary mode of discussion here. It is described in detail below; but our use of it has been extensively modified from the Interim Guidelines'. One way of aligning it to Riskin's "quadrant" form of description is to note that in the common core approach, by definition, the extremes of all four quadrants disperse into other occupations. Thus at the extreme of the evaluative/narrow quadrant, the work may be considered indistinguishable from that of an advisory arbitrator. At the extreme of facilitative/narrow is a convenor. The far reaches of the third quadrant, facilitative/broad, fit a common job description of a therapist. And the fourth (evaluative/broad), though somewhat harder to pin down, bears some relation to many religious and civil rights leaders' conceptions of peacemaking. The common core form of description also allows for the perception that many of the best mediators are versatile enough not to fit neatly within any of the divisions articulated by Riskin or Bush and Folger. These mediators, in effect, transcend much of the discussion by following more or less evaluative, facilitative, broad, narrow, transformative or settlement-oriented paths according to their sense of what the given occasion and the needs of a particular set of parties seem to require.
Our response to these circumstances is, we believe, a practical one. The working group that has prepared this document is not unanimous as to the relative value of each of the criteria we discuss. Unanimity in this context, however, is not as necessary as clarity. By seeking to identify our own values, we have forced to the surface disagreements about the purpose, character and style of mediation. We have discussed these issues, we have accommodated varying views to the extent possible, we make explicit the criteria that result, and we treat these as samples which any given program may justifiably use merely as a starting point for developing its own list. Finally, we lay no claim to exclusivity of use of the term "mediator" to describe those who work within the common core. In the next two sections we explore how programs that exercise their freedom to disagree with the values implied in the sample evaluation scales can modify elements of this document to make it useful to them.