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Conflict Analysis in Relation to Mediator Strategy and Type

by Rick Russell
September 2002 Rick Russell
Professor Leonard Riskin in his ground breaking article [Mediator Orientations, Strategies and Techniques, 12 Alternatives 111 (September 1994) posits that there are four main mediator types. In his article, he argues that mediators are either evaluative in approach or facilitative in approach.

The evaluative mediator tends to be an expert in the substance of the dispute and applies his or her substantive knowledge to offer an opinion of the merits of the case. This evaluation can either apply to the legal issues or factual issues, be they financial, engineering related or otherwise.

The facilitative mediator, in contrast, tends to be an expert in the process of mediation. She carefully guards her impartiality by eschewing offering opinions or pressing the parties as to the merits of the case. Her expertise is not in what a court or arbitrator might do with a civil dispute or grievance, but rather in helping the parties to generate a number of options for mutual gain.

Riskin also distinguishes between what he calls “Broad” and “Narrow” mediators. Narrow mediators tend to define problems narrowly and look for outcomes that replicate what a Court or arbitrator might do with a case. They are less intentional about looking for outcomes that produce results that are outside of the four corners of the law and what it provides. For that reason they run a process that is less focused on developing as many options as possible in order to find a ‘win/win’ solution.

Broad mediators tend to define problems broadly, and look for ‘out of the box’ solutions that provide the opportunity for mutual gain. These mediators will encourage the parties to seek “win/win” solutions that are not readily apparent to them when they are negotiating from positions. An Broad mediator will make use of brainstorming, perhaps the Six Thinking Hats ( Edward de Bono, Six Thinking Hats, Penguin) or other models to develop a multiplicity of options before deciding.

Riskin created a graph that illustrated the four quadrants or mediator types, very much like personality types indicated by the Myers Briggs Personality Type Indicator. One could score as an Evaluative/Narrow (E/N), Evaluative/Broad (E/B), Facilitative/Broad (F/B) and Facilitative/Narrow (F/N) mediator.

Riskin’s Four Quadrants:

While this characterization of mediator types is interesting and provides an excellent starting point for looking at mediator characteristics, it is not fully satisfactory. First, the terms ‘Evaluative’ and ‘Facilitative’ are not antonyms. Both are descriptive of certain mediator behaviours, neither one of which, this author would suggest, are exclusive of the other.

Evaluation takes place when a mediator, either through a series of statements or questions, tries to assist the parties in assessing their risks. Some mediators will state outright their assessment of risk – “I believe you will have a difficult time persuading a jury of that.” Others will make the party aware of their assessment through the use of fairly direct questions – “How do you address the argument that….?” Either way, the mediator is giving the party and counsel to understand that there is a persuasive burden that does not appear to the mediator to have been met, at least yet.

Evaluation addresses itself to the substance of the issue – i.e. who can prove what, or who can establish a certain principal or another. There does not appear to be anything that prevents a mediator who is effective in her use of evaluative input from being an effective facilitator. A better description of a mediator who uses fewer evaluative techniques, I submit, would be to describe them as a non-evaluative mediator.

Facilitation is the ability to allow certain things to occur during the course of a mediation. It is a process skill. In fact a mediator might be effective in large measure because she can facilitate the provision of evaluative information into the assessment of options by the disputants. The kind of facilitation that a mediator provides is better described as directive, meaning that the mediator directs the process or less directive, meaning that the mediator encourages the parties to participate to a larger degree in directing the process.

On the process axis, the two descriptions might be Directive and Non-directive mediators. Both of these descriptions apply to how they arrive at decisions about the process they follow.

A Directive mediator may follow a process that requires the parties to develop and consider multiple options. This may, in effect, mean that the outcomes of his mediation might be more ‘Broad’ to use Riskin’s language. A Non-directive mediator might allow the parties to discover and develop one option that is acceptable to them and to permit the process to end once one acceptable option has been identified.

Furthermore, Riskin’s analysis creates not four (as the four quadrants suggest), but two major types of mediators. Those mediators who are focused upon substance may tend to be more evaluative, and also less focused on interest based or win/win solutions. This is because their process is more based on a traditional rights based analysis of how a situation might be dealt with were the matter to go before a Court, or arbitrator. An evaluative mediator, it is suggested, would be more apt to be ‘Narrow’ and therefore closed to ‘out of the box’ settlement options than would a typical Non evaluative mediator.

A Non-evaluative (or in Riskin’s language) ‘facilitative’ mediator, by running a more Broad process driven by the clients’ assessment of what they want and need, is more likely to happen upon solutions that are ‘out of the box’. Because the mediator is not evaluating, it is more likely the parties will be open to greater possibility. Therefore that the more structured, ‘correct answer’ type of mediation (Rights based) that an Evaluative mediator would run, is less likely to come up with an ‘Broad’ (Interests based) result.

A third axis is worthwhile considering (and very possibly many others, given the creativity of mediators and the flexibility of the mediation process). The axis applies to the relational / psychological approach that mediators take.

Folger and Bush in their important text The Promise of Mediation make the case for four themes or stories of mediation. They argue that the highest and best use of mediation is for the transformation of human relationships. Many mediators choose to practice applying a model that focuses on the building or re-building of capacity within a relationship.

At one end of this axis one might see a process was designed with an outcome in mind that is intended to rehabilitate or transform the relationship. This mediator might be described as Transformational.

At the other end of the spectrum is the mediator whose sole object in designing and facilitating the process is to optimize the opportunity for a settlement. In Folger and Bush’s words, these mediators are pursuing the satisfaction story model of mediation. I will chose to call them Transactional, because their focus is not on the relationship, but rather on the substantive outcome.

The graph that these three axes would create has a third dimension as illustrated below:

Applying the Mediator Type Framework with the Triangle of Satisfied Interests

A handy feature of this model is that it marries up nicely to the CDR Triangle of Satisfied Interests, as described in Dr. Christopher Moore’s benchmark text, The Mediation Process.

TRIANGLE OF SATISFIED INTERESTS

Traingles

The Triangle of Satisfied Interests, (illustrated above) is a diagnostic tool to assist disputants and mediators to think their way around a problem fully. Parties have substantive interests around the result that they are looking for – the “What” of the problem, if you will.

Procedural Interests are the concerns that the parties have about “How” things have been done. In a given case, for example, the dismissed employee may feel that the severance package offered was fair, but sues because the manner in which she was dismissed was high-handed and demeaning. The barrier to settlement here is not “what” has been offered, but “how” it was offered.

Psychological Interests are those concerns that have more to do with how a disputant sees himself in relation to his world. These interests have more to do with what a settlement or what a lawsuit or conflict symbolizes to the person or to his or her community, what meaning he or she ascribes to it. These interests often pose unexplored and frequently unanticipated barriers to settlement.

For example, in marital separations there are frequently issues or objects that hold symbolic significance for the parties. A woman will not settle her divorce until a family heirloom is returned as part of the Separation Agreement, a rejected husband will not part with the heirloom because it symbolizes the lost spouse and the chance that a reconciliation might be possible.

Using these tools in tandem will assist parties and their counsel in selecting an appropriately skilled and oriented mediator to assist them.

Starting with the Triangle of Satisfied Interests, the parties with the assistance of their counsel (and perhaps other expert assistance, such as a psychologist, or conflict resolution professional) carefully review the barriers to settlement as they see them. Depending upon where the barriers lay, a mediator is chosen who can apply the approach(es) required to address the interests that may be driving the conflict.

For example, a construction conflict where the barrier appears to be a difference of opinion about whether the design of a load bearing wall has caused the damages suffered, might be best served through the use of an evaluative mediator with substantive expertise or experience in the construction field and the capacity to deal with the psychological interests that the designer of the wall might have around accepting responsibility for the damages suffered (assuming the designer is a party to the dispute).

In a dispute involving a developer, environmental activists and neighbourhood groups where the key barrier has been poor communication and a lack of trust between the developer and the neighbourhood where the development is to be located: a mediator or facilitator with procedural expertise and the ability to work with the parties to design a process that they feel they can exert some control over (a Non-directive mediator) may be crucial in securing an agreement.

Biography


Rick Russell has a broad range of experience in dispute resolution, having practiced as a civil litigation lawyer, an ombudsman, a mediator, a facilitator, an arbitrator, a third party fact finder and a trainer. Rick has mediated well over one thousand cases since 1988. These include business and commercial matters, bodily injury, disability and general insurance claims, workplace and employment, estates, human rights, insolvency, real estate and land use matters. Rick is active as a trainer, offering public courses in ADR and Advanced Mediation Clinics in association with the Institute for Peace and Conflict Studies at Conrad Grebel College, University of Waterloo. He also instructs in the University of Toronto’s Certificate Program in Dispute Resolution, and for Queen’s University’s Industrial Relations Centre. His in house training clientele include Royal & SunAlliance, Clarica insurance, Environment Canada, Morrison Hershfield Consulting Engineers and many others.

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