A Style Index for Mediators

This article is republished with the permission of the CPR Institute for Dispute Resolution from the December 1997 issue of Alternatives.Copyright © 1997 CPR Institute for Dispute Resolution.


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.


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


1 2 3
4 5 6 7 8
9 10


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


1 2 3
4 5 6 7 8
9 10


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


10 9 8
7 6 5 4 3
2 1


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


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


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


10 9 8
7 6 5 4 3
2 1


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


10 9 8
7 6 5 4 3
2 1







MCI’S Role of the Mediator


This section of the survey concerns the mediator’s
activities. It measures the strategies and techniques that the mediator
employs in attempting to address or resolve the problems that are the
subject matter of the mediation.


14. I provide parties with direction
as to the appropriate grounds for settlement (e.g., law, industry practice
or technology).


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


15. To help parties negotiate realistically,
I find it helpful to give an advisory opinion about the likely outcome
of a case.


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


16. My principal strategy is to help
parties understand the strengths and weaknesses of their legal positions.


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


17. I use the parties’ relevant documents,
pleadings, reports and legal briefs to help them look realistically at
their case.


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


18. The principal technique I use
is to encourage the parties to explore the likely outcome at trial.


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


19. A principal strategy I use is
to suggest a particular settlement proposal or range to the parties.


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


20. I use private caucuses early to
help the parties understand the weaknesses of their case.


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


21. I do not have to understand the
legal posture of the case to serve as the mediator.


Strongly Agree Strongly
Disagree


1 2 3
4 5 6 7 8
9 10


22. I focus on the process as opposed
to the outcome of a mediation.


Strongly Agree Strongly
Disagree


1 2 3
4 5 6 7 8
9 10


23. I prefer joint sessions over private
caucuses.


Strongly Agree Strongly
Disagree


1 2 3
4 5 6 7 8
9 10


24. Developing options for settlement
is the responsibility of the parties, not the mediator.


Strongly Agree Strongly
Disagree


1 2 3
4 5 6 7 8
9 10


25. I must have expertise in the subject
matter of the dispute.


Strongly Agree Strongly
Disagree


10 9 8
7 6 5 4 3
2 1


26. I do not consider it my responsibility
to protect legal rights and responsibilities of the parties.


Strongly Agree Strongly
Disagree


1 2 3
4 5 6 7 8
9 10


Self-Scoring Instructions

How To Determine Your Personal Mediator Classification:

1. Add together all of your Problem
Definition scores.

2. Divide that total number by 13. This is your mean Problem Definition
score.

3. Add together all of your Role of Mediator scores.

4. Divide that total number by 13. This is your mean Role of Mediator
score.

5. Go to the Mediator Classification Index (MCI) below.

6. On the Problem Definition axis (the bottom horizontal axis) locate
the point that corresponds to your mean Problem Definition score. Draw
a vertical line from that point all the way to the top of the Index.

7. On the Role of Mediator axis (the left vertical axis) locate the
point that corresponds to your mean Role of Mediator score. Draw a horizontal
line from that point all the way across the MCI.

8. The point at which the two lines intersect will be in the area
of the MCI that indicates your personal mediator orientation.

Mediator Classification Index

                        author

Barbara McAdoo

Barbara McAdoo, is a professor and Senior Fellow at Hamline University Dispute Resolution Institute. Herb expertise is in  Alternative Dispute Resolution (ADR), mediation and negotiation; empirical research on ADR; design and development of court ADR programs  Professor McAdoo has taught at the law school since 1984 and founded and directed the Dispute Resolution… MORE >

                        author

Jeffrey Krivis

Improvisational Negotiation. This phrase summarizes Krivis’ philosophy for a successful and dynamic mediated negotiation. A successful mediation needs both keen legal insight gained from years of litigation experience and cannot be scripted. Exploring this idea with further study led Krivis to venture on the stage as a stand-up comedian. Ultimately,… MORE >

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