A Style Index for Mediators

August 16, 2000

Prof. Leonard L. Riskin of the University of Missouri-Columbia School
of Law has written extensively about mediators and the mediation field.
Most recently his work has focused on developing ways to characterize
the many different styles of mediators.

In 1994, Riskin explained in Alternatives the ideas
used to develop this article’s Mediator Classification Index. [See Riskin,
Mediator Orientations, Strategies and Techniques, 12 Alternatives
111 (September 1994). Riskin elaborated on his classification system in
Understanding Mediator Orientations, Strategies and Techniques: A Grid
for the Perplexed, 1 Harvard Negotiation L. Rev. 7 (1996).] His theory
on mediator style focuses on (1) how mediators view their role, as “evaluative”
or as “facilitative,” and (2) how mediators define the problem, “narrow”
or “broad.” The result is a four-quadrant grid keyed to these two style
focuses and containing areas pertaining to mediator styles: Evaluative
Narrow, Evaluative Broad, Facilitative Narrow, and Facilitative Broad.

Based on Riskin’s work, we have developed the self-scoring
MCI. It is designed to assist mediators in understanding the particular
approach or style that they tend to use during the mediation process.

Understanding style is crucial to improving mediator
performance. It allows a mediator to select from a spectrum of techniques
that might be available depending on the nature of the issues presented.
It also makes it simple for the mediator to explain to the disputants
why a particular approach might be used in resolving the dispute.

Although the MCI is still a work-in-progress and
is not a standardized testing instrument, many are finding it to be a
useful tool to create an awareness of the stylistic options available
to mediators.

In developing the MCI, we first used expert panels
in Minnesota and California to analyze the content validity of questions
below. For example, did the questions measure what they were supposed
to measure relative to factors used by Riskin in his original grid? After
revisions, a 48-item MCI was made widely available and used throughout
the country by hundreds of mediation trainees. Using a statistical package
on a sample of 224 completed instruments, the scales were “purified” and
reduced. Finally, after analyzing written and verbal feedback received
from mediation trainers and trainees, the MCI was revised to its current
26-item format. To continue the instrument’s development, we invite additional
feedback from Alternatives’ readers.

Explaining the Quadrants

The differences between the types of mediators on
the grid are significant. According to Prof. Riskin, “the principal strategy
of the Evaluative-Narrow mediator is to help the parties understand the
strengths and weaknesses of their positions and the likely outcome at
trial. To accomplish this, the Evaluative-Narrow mediator typically will
first carefully study relevant documents, such as pleadings, depositions,
reports and mediation briefs. Then, in the mediation, she employs evaluative
techniques … which are listed from most to least evaluative.”

The Facilitative-Narrow mediator “plans to help the
participants become realistic about their litigation situations. But he
employs different techniques. He does not use his own assessments, predictions
or proposals. Nor does he apply pressure. Moreover, he probably will not
request or study relevant documents, such as pleadings, depositions, reports
or mediation briefs. Instead, because he believes that the burden of decision
should rest with the parties, the Facilitative-Narrow Mediator might ask
questions—generally in private caucus—to help the participants understand
both sides’ legal positions and the consequences of non-settlement.”

The Evaluative-Broad mediator “helps the parties
understand their circumstances and options. However, she has a different
notion of what this requires. So she emphasizes the parties’ interests
over their positions and proposes solutions designed to accommodate these
interests. In addition, because the Evaluative-Broad Mediator constructs
the agreement, she emphasizes her own understanding of the circumstances
at least as much as the parties’.”

The Evaluative-Broad mediator “also provides predictions,
assessments and recommendations. But she emphasizes options that address
underlying interests, rather than those that propose only compromise on
narrow issues.”

The Facilitative-Broad mediator “seeks to help the
parties define, understand and resolve the problems they wish to address.
She encourages them to consider underlying interests rather than positions
and helps them generate and assess proposals designed to accommodate those
interests.”

After taking the test below, the box at the end explains
the scoring method, which will place you on the grid. Where you are on
the grid provides a snapshot of your natural tendencies as a mediator.
It does not necessarily limit your ability to move around the grid by
using different strategies and techniques depending on the circumstances
of the case.

Instructions

Review each statement below from the perspective
that you are a mediator, and indicate the extent to which you agree or
disagree by checking the appropriate box and recording the score. When
you are finished, follow the accompanying Self-Scoring Instructions.

Or, you may visit an automated version of the index.
Be sure to use back button to return to balance of this article. Visit
Automated MCI

MCI’S Problem Definition

This section of the survey concerns the goals
of a mediation. The statements are designed to measure the scope of the
problem(s) that the mediation seeks to address or resolve.

1. I encourage the parties to focus
on resolving the specific, legal problems.

Strongly Agree Strongly Disagree

1 2 3 4 5 6 7 8 9 10

2. I prefer to look beyond the legal
issues in defining the problem to be resolved.

Strongly Agree Strongly Disagree

10 9 8 7 6 5 4 3 2 1

3. I am inclined to consider the parties’
interests more important than the legal issues in defining the problems
to be resolved at the mediation.

Strongly Agree Strongly Disagree

10 9 8 7 6 5 4 3 2 1

4. The focus of the mediation session
is on legally relevant issues.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

5. In learning about the issues of
the case, it is important to understand the legal posture of the case.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

6. I urge the parties to compromise
on narrow issues.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

7. I tend to decide how I will approach
a case based on the legal documents, technical reports or legal briefs.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

8. Even when the lawyer is present
at a mediation, I ask the client to discuss the personal impact of the
case.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

9. The interests of the parties are
more important to me than settling the case.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

10. The parties’ perception of the
conflict is not as important to me as the actual evidence of the case.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

11. I view the mediation as an opportunity
to help the parties understand each others’ perception of the dispute.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

12. My role is to help parties understand
and reach settlement on the issues set forth in the legal documents.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

13. Generally, parties are more capable
of understanding their situations better than either lawyers or mediators.

Strongly Agree Strongly Disagree

1 2 3
4 5 6 7 8
9 10

MCI’S Problem Definition

This section of the survey concerns the goals
of a mediation. The statements are designed to measure the scope of the
problem(s) that the mediation seeks to address or resolve.

1. I encourage the parties to focus
on resolving the specific, legal problems.