Chapter 3: The Role of the Mediator: Differing Approaches, Fundamental Norms
p. 65

CHAPTER 3

The Role of the Mediator: Differing
Approaches, Fundamental Norms
This chapter contains extended video extracts from two, almost full-length
mediations, totaling approximately two hours and fifteen minutes.

§3.1 THE MANY FACES OF MEDIATION

You may have entered this course with a single, unitary image of the mediation process and
the role that mediators play. If so, it isn’t that simple. Unlike other professions, there is no
one standard conception of the mediator’s proper role.1 Instead, we find philosophical and
professional debates over competing models, which in some ways have deepened as the
field has matured and become more segmented by mediator backgrounds, consumer
expectations and dispute subject matters.

Consider the following (real) cases:

A breach of contract case brought by a fired sales representative against his former
employer was referred to mediation by the trial judge. The plaintiff’s complaint had
requested $7 million in damages; the parties’ prior settlement discussions had
suggested that the plaintiff would accept $750,000, with the defendant offering
$350,000. Before the mediation began, based on private phone sessions and study of
documents provided by counsel for the parties, the mediator, an experienced lawyer,
formed his own estimate of the settlement value of the matter as between $500,000
and $600,000. He then convened the mediation and, p. 66through a series of private
sessions with the parties, attempted to move them toward a settlement by predicting
that evidence harmful to one side would be admitted into evidence, urging the plaintiff
to drop a “messy” claim for infliction of emotional distress, exhibiting disbelief at the
plaintiff’s continuing to demand more than the mediator’s projected outcome (“how
greedy can you get?”) and showing anger when the defense refused a $550,000 offer
of settlement. After thirteen hours of nonstop talks, during which the parties were
separated at one point for seven hours, having rebuffed (“to keep the heat on”) the

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plaintiff’s 11 p.m. proposal to adjourn for the night and suggesting that the trial judge
would react adversely to the company’s failure to “live up to its moral obligations” to
settle, the mediator drove home a $550,000 installment payment resolution at 1:00
a.m.2

The U.S. Postal Service offers a voluntary mediation program for employees who
have filed complaints of race, age, gender or other unlawful discrimination, usually
against their workplace supervisor.3 A recent case involved a claim of race
discrimination based on a supervisor’s failure to approve a subordinate’s request to
attend a training program that could have enabled the worker to develop skills needed
for promotion. The unrepresented claimant charged that the supervisor showed
favoritism to other workers, a feeling she claimed that others shared. At times, the
claimant would run on emotionally for ten minutes or more, often repeating herself.
The claimant could not substantiate the alleged favoritism with examples or evidence.
The supervisor explained in detail the process for selecting from among the many
training program applicants and stated performance-based reasons for the claimant’s
non-selection. He also provided evidence that the eligible pool for the program
consisted overwhelmingly of persons of the claimant’s race and, moreover, that the
worker selected for the training was a person of the claimant’s own race. Pursuant to
program policy, the lawyer-mediator made no effort to limit the claimant’s emotional
displays, expressed no views on the likely outcome of the matter (despite his clear
belief that the claimant’s case lacked legal merit) and proposed no solutions. The
four-hour meeting ended with no resolution. Just before leaving the session, the
worker thanked the mediator for his time, reiterated her intention to take her complaint
to “the next step,” and added, “At least now the supervisor knows how I feel. And
maybe now he’ll stop making decisions without giving people reasons.”

In 2009, a college campus was rocked by the allegation that a junior-year male honor
student sexually assaulted a female classmate in his room after a party at a fraternity
house. Sit-ins by the campus women’s group demanding his expulsion threatened to
disrupt final exams. The accused student, who had been temporarily suspended,
denied the charges, claiming that the sex was consensual. The alleged victim filed a
campus disciplinary complaint and, at the urging of her boyfriend, contemplated
seeking criminal charges as well. The male student threatened to sue the university if
his progress toward graduation was impeded. At the suggestion of the university
administration, both students agreed to try to resolve p. 67the matter through
mediation. The mediation team, consisting of a male and female faculty member,
convened marathon sessions that explored the incident, the background, the parties’
reactions to the incident and its aftermath, their plans and needs. After forty-two hours
of meetings over four days, a resolution acceptable to both was reached, including
withdrawals of all complaints, provisions for preventing contact by the parties

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(including a semester’s leave of absence for the alleged perpetrator), university-paid
counseling for the alleged victim and mandatory “date rape” education for all of the
university’s sponsored fraternities and sororities. Because of fears expressed by the
female student before the start of the process, at no time during those forty-two hours,
including the signing of the agreement, did the two students sit in the same room
together.4

At a Texas prison, a woman and the convicted death row inmate who brutally
murdered her daughter engaged in a lengthy and highly emotional face-to-face
confrontation two weeks before the inmate’s scheduled execution. The meeting took
place as part of a state-sponsored “victim-offender” mediation program. The woman
had sought the meeting for twelve years; the inmate had only recently agreed to
participate. For months prior to the meeting, a psychologist-mediator worked
separately with the participants in order to increase the likelihood that the meeting
would be productive and would not re-victimize the mother. Among other
interventions, he coached the inmate on how to offer an effective apology. (Referring
to the murder as a “mistake” would not be well-received, the mediator urged.) The
meeting only took place once the mediator determined that the parties were “ready.”
At the meeting, hours went by as the mother’s outpouring of rage and grief was
followed by the murderer’s tearful, non-defensive apology, description of his own
(difficult) life, and acceptance of responsibility. Eventually, the mother offered a form of
personal forgiveness (“I can never forgive what you did, but . . . I have to forgive you
as a person”), for which the inmate thanked her. The mediator said almost nothing the
entire day.5

At the outset of this book, we defined mediation as assisted negotiation in which a neutral
third party attempts to help disputants resolve a dispute, without compelling them to accept
any particular resolution. Here is another definition, with a slightly different emphasis: “a
consensual process that seeks self-determined resolutions.”6

Were each of the third parties depicted above practicing “mediation” within these
definitions? What factors might account for the differences in the way each conducted the
process? Is there a way to assess which of these approaches is preferable? Were any of
them inappropriate? From whose vantage point would we conclude this? Would a uniform
approach have been effective across all of these situations? What does “effective” mean in
each of these cases?

p. 68Role Definition as Mission Statement. Understanding one’s proper role in an
undertaking and the objectives one is trying to achieve are critical first steps in learning any
new set of skills. Without a sense of one’s goals in differing settings and a conception of
appropriate and inappropriate means of achieving them, skills become a set of

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disembodied techniques, and the new practitioner has little grounding to rely on when a
situation presents a choice as to how to proceed.

A mediator’s basic conception of her role—both her general goals and the actions she
believes are appropriate to achieve them—will affect virtually everything she does as a
mediator. That role conception will help her determine a tentative plan for each mediation
and specific techniques, or tactics, to carry out that plan. (Her understanding of the role
options available to her will also inform changes in her game plan that may be warranted as
the process unfolds.) That strategy and how it is executed, in turn, will often have
considerable influence on the kind of outcomes produced. This can be depicted as follows:

Role Conception—> Plan—> Techniques and Tactics—> Outcomes7

This chapter focuses primarily on issues of role definition, postponing issues of planning,
tactics and techniques to later chapters. We introduce you here to the differing ways in
which mediators conceptualize their role, the differing forms of mediation that result, the
current debate over these different mediation models and our own views on these
contested issues. We also present three mediation norms about which all mediators,
regardless of philosophy, appear to agree, although as we will see, these “universal” norms
have different shades of meaning and different degrees of primacy for different
practitioners. We conclude by identifying the principal contextual variables and constraints
that—however a mediator conceptualizes her role in general—might affect how she plans
for and then conducts herself in a particular case.

§3.2 DIFFERING CONCEPTIONS OF THE MEDIATOR’S
ROLE: HISTORICAL ROOTS

To appreciate (and, we hope, to begin to locate yourself in) the “ideological contest”8 over
the proper goals and methods of mediation, it may be helpful to examine the historical
forces behind the rise in interest in alternatives to litigation generally, and mediation in
particular.

Mediation in America experienced its first widespread use in the “relational” areas of labor-
management relations and domestic relations, in response to the social cost of labor strife
and the dramatic rise of divorce in the mid-twentieth century. “Conciliation” was viewed as
the foremost goal of mediation in those spheres.9 The 1960s and early 1970s saw the
advent of community-based p. 69conflict resolution, which involved the mediation of low-
level neighbor-neighbor disputes and minor criminal matters. The “neighborhood justice”
movement viewed mediation as a means of providing access to justice for those who would
not otherwise afford it and of promoting community harmony. The proponents of the

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neighborhood justice movement urged the creation of processes that were informal, not
controlled by outside legal professionals or specialists, that elevated personal (rather than
legal) norms in decision making and stressed the empowerment that comes from
maximizing the disputants’ participation and personal control of their own fates.10

This democratic movement was not without its detractors. Critics expressed concern that
“informal justice” without protection of legal rights would harm the very disadvantaged
citizens that such processes were intended to reach and would fail to consider the impact of
decisions on those not present and participating.11

The 1970s and 1980s saw what most scholars consider to be the dawn of the modern
Alternative Dispute Resolution (ADR) movement.12 In this period, ADR’s most ardent
advocates saw litigation alternatives, including mediation, as a solution to many of the
perceived problems of the public court system. Officials managing congested dockets
amidst the arguable “litigation explosion” that took place in the post-Vietnam era decried the
cost and delay that characterized public justice and urged the creation of backlog-clearing
alternatives. This quantitative rationale for alternative processes was perhaps best summed
up in Chief Justice Burger’s call for “mechanisms that can produce an acceptable result in
the shortest possible time, with the least possible expense and with a minimum of stress on
the participants.” “That,” he argued, “is what justice is all about.”13

During this era, another school of ADR proponents entered the scene, with a different
ideological perspective. Their quarrel was with limitations in the quality of justice (in terms
of both process and outcomes) obtainable in the public courts. Some pointed to the courts’
exclusive focus on rights-based, win-lose decision making, in which remedies were
constrained by legal entitlements and important non-legal interests were viewed as
irrelevant. They argued that alternative processes that could redefine disputes broadly so
as to explore non-legal concerns could produce outcomes that were substantively superior
(tailored to the parties’ needs, built to last, etc.) to those obtained in adjudication or in the
unprincipled, distributive bargaining that characterized much dispute-based negotiation.14
Others in this school focused on the human costs and relationship-destroying p. 70hyper-
adversariness of court litigation and the competitive bargaining that it spawned and pointed
to the more humane process that could be obtained through alternatives like mediation.
This was especially important for, but not limited to, matters involving continuing
relationships.

At the close of the twentieth century, corporate America joined the chorus of proponents of
mediation and began to use it with increasing frequency for both external and internal
company disputes. This trend can be traced to concerns about increasing financial costs,
publicity risks and lost managerial time associated with traditional litigation. During this
period, both trial and appellate courts also began to mandate mediation with increasing

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regularity. This development elevated a new set of priorities for the process: efficiency and
high settlement rates. It also created a new emphasis on law in the mediation process,
because much mediation activity was now hosted by courts in the “shadow”15 of the
courtroom or purchased by private litigants who valued legal expertise as a critical
qualification in their selection of neutrals.

The turbulent start of the twenty-first century saw mediation applied on a more wholesale
level, as exemplified by legislative efforts to minimize the impact of mass mortgage
foreclosures through state-sponsored mediation programs,16 and by businesses
harnessing technology to provide an inexpensive forum (online dispute resolution or “ODR”)
for resolving high-volume, and often low-value, e-commerce disputes.17

These diverse, often conflicting values for both processes and outcomes—reconciliation,
community building, empowerment, freedom from law, efficiency, party participation,
creativity, informality, expertise, fairness, privacy, etc. —have today all made their way into
the macro world of mediation, championed by differing consumer, provider and policy-
making groups in varying degrees. On a micro level, for the individual mediator, the pulls of
these competing values can easily converge in a single case or even a single moment in a
case, when the neutral is confronted with a choice of several ways to proceed.

§3.3 THE MEDIATOR’S GOALS IN ACTION: A CASE OF A
BROKEN CAR MIRROR

To introduce this role debate in action, imagine that you have been assigned to mediate the
following dispute, a real case that recently took place in a major city in the Northeast:

A lawsuit is brought in small claims court against the owner of a car wash stemming from
alleged damage to a customer’s Nissan Maxima. The car owner claims that four p.
71months ago the car wash machine ripped the electric mirror from his car’s body and that
it will cost $485 to install a new one. A written estimate from a local Nissan dealership for
this amount is attached to his complaint. The parties agree to try to resolve the matter
through mediation at the court’s dispute resolution program one week before the date set
for the trial. Neither party is represented by an attorney.

In the first few minutes of the mediation, you learn the following: The car owner and his
spouse, both of whom are African American, live several blocks from the car wash and, for
several years before the dispute, had been regular customers. The defendant, a recent
immigrant from Southeast Asia whose English is poor, purchased the car wash about a
year ago with his brother. The plaintiff’s car is less than one year old. Its passenger-side
mirror came loose from the car near the conclusion of the wash cycle. The customer

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immediately sought out the car wash operator to report the damage. After inspecting the
dangling mirror and denying responsibility, the operator offered to have his brother (who he
said was a mechanic) fix or replace the mirror. When this offer was refused, the operator
threw up his hands and began to walk away. At this, the car owner began yelling angry
insults, threatened a lawsuit and left. Since the incident occurred, both he and his spouse
have been using another car wash.

In the mediation, the car wash operator repeats his claim that he was not responsible, that
there must have been something already loose or defective about the mirror, because this
had never happened before and his business washes thousands of cars per year. He adds
that he felt the amount the plaintiff was claiming was “not reasonable” and that his brother
could have fixed the problem for one-third of the amount claimed. He expresses
bewilderment and anger that his immediate offer to fix the mirror was rejected and that he
has been sued. In response to questioning, he states that his insurance has a deductible of
$1,000.00.

You know from reading recent newspaper articles that the car wash is located in an area of
the city that has been the site of considerable conflict between the communities from which
these parties come. Among the factors cited for this tension is the trend of entrepreneurial
Asian immigrants moving into the area, buying existing businesses (often from white or
African American owners) and then hiring Asians to replace existing (mostly African
American) employees.

Imagine yourself in the mediator’s seat at this juncture. What kind of outcome comes to
mind? A negotiated compromise involving payment of some amount by the car wash
operator to the car owner? Some re-establishment of the parties’ prior business
relationship? Some greater understanding between the parties based on exploring the
strong feelings that their conflict engendered? Some agreement that attempts to address
wider intergroup concerns in the neighborhood? Which of these came to mind first? Do any
of these possible solutions seem unrealistic? Do any make you uncomfortable? What is
your reaction based on?

Next, how do you see yourself acting as a mediator in this matter? Would you have the
parties talk face to face, or do you envision separate meetings with them? Will you focus on
the strong feelings already identified? Or will you try to minimize or avoid them? Would you
try to harness what you knew about neighborhood tensions? If so, how and to what end? If,
during the discussions, you developed a view of the likely court outcome and the risks/costs
each side faced in p. 72going to court, would that become relevant? Would you interject
that assessment? If so, how forcefully? What factors explain your answers to these
questions?

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The mediator’s role conception—both approaching the process and as it unfolds—will
depend on his or her answer to two primary questions:

What kind of outcome should this process produce?

How much influence should I exert in the process?

In the pages that follow, we summarize the major perspectives in the debate over each of
these questions.

§3.4 MEDIATION OUTCOMES: SHOULD “SOLVING THE
PROBLEM” BE THE GOAL? IF SO, WHAT PROBLEM
AND WHAT KIND OF SOLUTION?

To most mediation practitioners and theorists, it is almost a matter of definition: The
principal goal of mediation is to “solve the problem”—resolve the dispute, conclude the
transaction, settle the lawsuit or, at the very least, narrow the issues in controversy. If asked
for justifications for this approach, problem-solving mediators would cite the expectations of
the participants, program, agency or court, as well as the societal benefit from assisting the
parties in averting continuing conflict, litigation, stalemate or even violence.

As to the means for achieving this goal, there is less consensus. In Chapter 2, we
described how adversarial bargaining is still quite prevalent in all realms of dispute
negotiation. Competitive negotiation is likewise common when parties enter mediation. If
asked, many (perhaps most) mediators would agree that a broad, interest-based approach
to mediation is desirable (in terms of “maximizing value”), and many mediators do attempt
it. But the real world of mediating legal disputes is also heavily characterized (and perhaps
even dominated) by rights-based approaches that seek efficient resolutions by making
heavy use of legal rules and arguments that frame the problem narrowly.

Thus, within the world of problem-solving mediators:

Narrow “Settlers” tend to define problems by seeing them as they are framed by the
parties in their negotiating stances or in court pleadings. Because these are most
often couched in positional, distributive terms (“We demand $6 million in damages”; “I want
my daughter every weekend”; “We seek a $2 an hour pay raise”; “We won’t buy the
company for more than $3.2 million”) the narrow problem-definer will generally seek a
compromise between the parties’ positions that will simply end the matter. If the dispute is a
threatened or actual litigation, the primary focus may be on the past event that spawned the
dispute, with the mediator often leading the process toward a discussion of likely court

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outcomes and using each party’s litigation risks and costs as a primary settlement guide.

The narrowest mediators tend to be law-trained or non-lawyer practitioners who work in
(often high volume) court settings. Some may acknowledge the potential benefits of
broadening the way the problem is defined but view the process of learning information
about concealed interests as too time-consuming or requiring skills they lack. Outcomes
produced by narrow mediation tend to p. 73be reached through competitive bargaining and
tend to be settlement solutions. In our car wash case, such a narrow approach would seek
a payment amount, somewhere between $0 and $485, which the plaintiff would accept to
withdraw the lawsuit. As should be obvious, this conception of the mediator’s role is closely
related to the push for speedier, less costly alternatives to litigation that began to hold sway
at the beginning of the 1970s, and to the increasing adoption of mandatory mediation by
courts.

Broad “Problem-Solvers” are also motivated to end disputes but see their purpose as
attempting to solve the problem at hand on the most optimal and satisfying terms possible.
Tracing their roots to the qualitative push for alternatives to litigation, these neutrals attempt
to go beneath the parties’ stated positions to find agreements that meet their real concerns.
By focusing on the parties’ legal and non-legal interests, broad problem-definers hope to
find true and lasting resolutions to the underlying conflict, not mere compromise
settlements. This problem approach goes beyond a desire to create satisfying results. By
trying to get the parties to see the problem broadly in terms of their interests, the often
contentious bargaining that tends to accompany narrow, zero-sum problem definitions may
be reduced, the likelihood of resolution enhanced and the mediator’s job of managing the
process made easier.

In litigation matters, broad problem-solving mediators frequently encourage the parties to
focus on what they need in the future rather than stressing what occurred in the past. (Our
Chapter 2 products liability case, with its eventual focus on educating the adopted children,
is a good example of this.) Relational solutions, which seek to build on existing or potential
future dealings between the parties, hold particular promise for a forward-looking approach.
Mediators who perceive the parties’ conflict as existing in a wider context affecting the
interests of others might seek to extend the breadth of the problem to be solved still further.
In the university campus dispute over an individual incident of alleged sexual misconduct
mentioned earlier, the mediators did just that, by proposing and brokering an agreement for
mandatory fraternity date rape education as part of the overall solution.

In our car wash case (instead of or in addition to a financial resolution of the $485 damage
claim), a broad problem-solver might explore:

a resumption of the pre-existing business relationship between the parties (possibly

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also including the customer’s spouse);

an agreement under which the car wash owner fixes the broken mirror and gives the
customer free car washes for a specified period;

some more personal reconciliation or education of the parties. This might include
attempting to foster better understanding of the parties’ respective roles in causing the
underlying dispute and some personal connection between them, by working through
its emotional and/or cultural components;18

some progress on easing the tensions in the neighborhood, possibly via a public
demonstration of mutual support by the parties or an arrangement under which the
parties work jointly to bring in African American employees and customers.

p. 74

§3.5 THE TRANSFORMATION OBJECTIVE:
EMPHASIZING PERSONAL GROWTH AND IMPROVED
COMMUNICATION

An important third model of mediation, called transformative mediation, has gained
attention, support and increased adoption in recent years.19 To its proponents, the principal
focus of a mediator’s efforts should not be to vindicate rights, satisfy interests or secure an
agreement that resolves the matter. Instead, the main goal should be to try to “transform”
the parties’ conflict by improving their conflict interactions.20

Transformative mediation rests on a fundamentally different view of conflict than problem-
solving mediation. Under the problem-solving model, transformative theorists argue,
conflicts are treated as problems in satisfying disputants’ incompatible needs and interests,
with the mediator’s job to help the parties generate an agreement that solves tangible
problems in fair and realistic terms. The mediator does this by identifying concrete
negotiation issues, generating options and using persuasion to try to bring the parties
closer together and hopefully find a settlement.21

Transformative mediation, by contrast, views conflict primarily as a “crisis in human
interaction” that makes disputants feel “more vulnerable and self-absorbed than before the
conflict” and causes their interactions to degenerate and assume a “mutually destructive,
alienating and dehumanizing character.”22 This negative cycle, involving feelings of
disempowerment and disconnection, transformative theorists argue, is what people tend to
dislike most about interpersonal conflicts.23 As they see it, the most important job of the

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mediator is to help reverse this negative spiral if possible and “reestablish a constructive (or
at least neutral) interaction.”24

Transformative mediators seek to use the mediation process to bring about two major
effects on the parties: empowerment and recognition. “Empowerment” is defined as
“restoration to individuals of a sense of their own value and strength and their own capacity
to handle life’s problems,”25 including the enhanced personal ability to work through and
resolve a conflict. “Recognition” involves evoking in each participant “acknowledgment and
empathy for the situation and problems of others,”26 including, of course, the current
“opponent.” What counts p. 75in transformative mediation are shifts in the quality of the
conflict interaction, by which the parties “reclaim both their sense of
strength/competence/agency and their understanding/responsiveness/connection to each
other.”27 Because mediation is seen as unique among dispute resolution processes in its
potential to bring about such personal change and growth, this capacity (its “promise”)
should be tapped if possible. Rather than being the main goal, settlement is seen as a
potential byproduct of a successful transformative mediation.

In making the case for this different priority, the transformation school criticizes three of the
major underpinnings of settlement-oriented mediation. First, they see the goal of efficiency,
if measured by settlement rates and time/cost measures of success, as “creat[ing] perverse
incentives: it opens the door to, and indeed encourages, manipulative and coercive
mediator behavior.”28 Alternatively, to the extent that mediators attempt to protect the legal
rights of participants by ensuring that agreements reached are substantively “fair,” the
mediator’s impartial stance is impaired.29 Finally, they argue that, as a practical matter, it is
impossible for mediators to take a “macrofocus, concentrating on the parties’ situation in
order to grasp the nature of the problem and possible solutions,” while also taking a
“microfocus and concentrating on the parties’ interaction to spot opportunities for
empowerment and recognition.”30 Any attempt to integrate concerns about both practical
solutions and intangible relationships will likely fail, they argue, and one set of concerns will
be sacrificed to the other.

Not surprisingly, the goal of transformation, at least as an end in itself, has engendered
skepticism if not outright criticism. Many broad problem-solving mediators see the
transformative approach—helping people make their own decisions and better understand
the perspectives of others—as an important part of what they already do. They reject as
unsubstantiated the claim that it is impossible to focus both on concrete problem-solving
and personal growth and reconciliation in mediation. Others acknowledge the possibility
and importance of transformative moments in many disputes but refuse to elevate this goal
above settlement.

Other commentators are more hostile. They consider transformative mediation to be

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antithetical to self-determination for participants who enter mediation seeking practical
solutions that may not be forthcoming.31 Some critics claim that the goal may
inappropriately seek to turn mediation, a conflict resolution process, into a quasi-therapeutic
enterprise that imposes the mediator’s own agenda on parties who may not wish to make
the effort.32

p. 76Still others point to what they see as the limited applicability of this model. One of the
premises of transformative mediation is that most conflicts are “long-term affairs” that “will
continue in some form after the [mediator’s] intervention is finished.”33 But many disputes
submitted to mediation are between strangers, who had no relationship before their dispute
arose and will have no further dealings in the future. Moreover, in disputes involving large
organizations, even if there is an ongoing relationship between the parties, achieving
transformational goals may be difficult if the individuals whose decisions or actions are
complained of are not present at the table.34

Whatever one’s views on these differing models, there is no question that the mediator’s
goals for the process can have a significant impact on how the process is conducted and
the outcomes that are achieved. In our car wash case, both transformative and broad
problem-solving mediators might attempt to explore the emotional aspects of the dispute,
including the car wash owner’s sense of outrage at being rebuffed after offering to fix the
problem and to then being sued, as well as the car owner’s reactions to the aborted
discussions and other aspects of this conflict. Expressions of feeling would be encouraged
and explored, not managed or squelched. Both would, in some fashion, attempt to lead the
parties to see the other side’s viewpoint. Transformative mediators, more than problem-
solving mediators, might also seek to mine the conflict for its learning potential—trying to
help the parties grow in learning about themselves and their conduct as consumers, as
business operators and as disputants.

But at some point in the mediation, the goals and actions of broad problem-solving
mediators and transformative mediators would diverge. Problem-solving mediators would
eventually work to identify concrete issues about which the parties could negotiate and then
manage a bargaining process designed to help them achieve an interests-based resolution.
Transformative mediators, by contrast, would continue to “follow” the parties, looking for
opportunities for empowerment and mutual recognition, but allowing them to take their
conversation wherever it might lead—in the direction of settlement or not.35 And whatever
the similarities and differences between broad problem-solving and transformative
approaches to the car wash matter, both would begin and likely proceed in ways that
contrasted with a narrow, settlement-oriented process focused on finding a monetary
compromise to end the dispute.

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§3.6 FROM GOALS TO ACTIONS: HOW MUCH
INFLUENCE SHOULD THE MEDIATOR EXERT?

In addition to differing over the most important goals of the process, mediators are strongly
divided regarding the related issue of what kind of actions are p. 77appropriate for a
mediator to use to achieve her goals. In particular, how should a mediator use—or not use
—her considerable power?

The central disagreement here is referred to as the facilitative-evaluative debate, terms we
will define shortly. But it is really part of a broader controversy over how active the mediator
should be in attempting to produce a resolution or influence its terms. Each camp—the
traditional facilitative and the evaluative school—has roots that can again be traced to
forces influential in the rise of the mediation movement. And, as we shall see, this debate is
largely, although not completely, about the wide array of meanings attached to the
principles of mediator impartiality, neutrality and party self-determination. Before we
examine the debate, however, it is important that we identify three ways in which a mediator
can exert influence on the parties and the process:

Influence over the structure and ground rules of the mediation. Here we refer to
how much control the mediator exerts over how the mediation process will operate,
especially in its early stages. Sometimes called the “meta-process” or “the process
about the process,”36 this might include decisions about who will participate, the
number and identity of mediators, time limits, procedures for exchanging information,
whether or not private sessions will be used and conditions for terminating the
process.

Influence over the process in operation. Here the focus is on the mediator’s
influence over the way in which the participants’ ongoing communications are
managed. This encompasses the many decisions that must be made in the midst of
the process, ranging from the sequencing of speakers, whether and how to control
emotional exchanges, choice and sequence of topics to be discussed and negotiated,
whether and when to separate the parties, when to take breaks, how long a session
will last, and if and when to declare an impasse.

Influence over the outcome. Here the debate centers on how much influence—if
any—the mediator should exert over whether an agreement is reached or the specific
terms of a resolution. Suppose that one or both parties is/are being unreasonable?
What if one lacks basic information about his rights? Suppose the parties lack the
mediator’s creativity to come up with effective solutions to their dispute? What if they
ask for help in deciding whether to accept a settlement proposal? Suppose they are

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considering a resolution that seems unwise to the mediator?

Separating Process from Outcome? In the world of mediators, it is common to hear the
expression “the mediator is in charge of the process; the parties control the outcome.” This
allocation of decision-making responsibility has considerable intuitive appeal, inasmuch as
it corresponds to the comparative expertise of mediators (concerning how best to conduct
the proceedings) and the parties (regarding their own fate and what matters most to
them).37 But, as in p. 78law, attempts to draw a bright line between “procedure” and
“substance” raise as many questions as they answer. Why is this so?

First, mediation is, if nothing else, a dynamic and fluid process. To suggest that one of the
participants—the mediator—unilaterally controls even the most clearly “procedural” aspects
of the enterprise is to ignore the reality that parties and their lawyers can exert great
influence over process decisions. For example, in our car wash case, who is really
controlling the process if, in the face of mediator “direction” to the contrary, the customer
refuses to participate unless his (non-party) spouse is permitted in the room? Or suppose
that the mediator does not generally believe in separating disputants, but one party refuses
to discuss an important topic in front of the other side?

Second, mediator and participant views about how to define the problem to be solved are
not static. Attitudes can be changed by events, people and ideas. In our car wash case, a
mediator who starts out predisposed to try to re-establish business dealings between the
owner and the customer might well abandon this goal in the face of party resistance, time
limitations or information pointing to the likelihood of future conflict if relations were
restored.

Third, as suggested earlier, process decisions often have an enormous impact on
outcomes. In our car wash case, for example, a mediator’s decision to conduct the
mediation through heavy use of private meetings with each side—perhaps to avoid a
potentially destructive recurrence of some earlier emotional outburst—might all but
foreclose any opportunity for the participants to gain the kind of trust and understanding
needed to attempt a possible restoration of their relationship or some other interests-based
solution to their dispute.

Still, in the world of mediation, there is greater consensus about who should control the
process than whether the neutral should influence substantive outcomes. On the latter
topic, deep ideological differences have arisen between “facilitative” and “evaluative”
theorists and practitioners.

What Is “Facilitative” Mediation? In the classic facilitative model of mediation, the
mediator moderates a structured process of communication aimed at generating a
negotiated outcome of the parties’ own creation. In this model, the mediator studiously

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avoids interjecting her own opinions or ideas for solutions. Instead, facilitative mediators
assume that, because the parties know their situation better than anyone else, they can
create better solutions themselves than any outsider can propose or impose. (Historically,
this model can be traced directly back to the community mediation movement with its ideals
of citizen empowerment and “de-legalizing” disputing.)

The facilitative mediator focuses on the negotiating process itself, seeking to create optimal
conditions for the parties to determine whether and how to resolve their problem. Such
neutrals may be directive about structure and process: asking questions, suggesting an
agenda of topics to be negotiated and deciding the sequence of discussions and whether
and when to meet privately with the parties. They will work to keep discussions and
behavior productive and may ask questions or challenge the parties to try to get them to
assess the options realistically. But while facilitative mediators may assist in analyzing or
even suggesting options, they refrain from recommending solutions, giving advice, offering
opinions or making predictions about the court (or other) alternative to a mediated p.
79resolution. For the most part, they reject pressure of any kind as a method of achieving
resolution.

What Is “Evaluative” Mediation? In evaluative mediation, by contrast, the mediator
assumes (or, through a process of questioning, confirms) that the parties want her to assist
in obtaining a settlement by providing feedback on their viewpoints and positions and/or
offering help or direction as to possible agreement terms. This guidance might be based on
the mediator’s “industry knowledge” or experience in dealing with similar matters.

A mediator’s evaluation may be based on law, other specialized knowledge or her personal
reactions to the parties’ perspectives on the dispute or their settlement proposals. When a
mediator with a background in commercial construction advises the parties that the solution
they are considering is not viable from an engineering standpoint, he is practicing
evaluative mediation. If a mediator with a degree in family counseling tells a divorcing
couple that a proposed parenting arrangement may be psychologically harmful to the
children, she is evaluating. And when any mediator offers his view of the strength of an
argument or the fairness, practicality, durability or wisdom of a proposal, he is evaluating as
well.

Our primary focus will be on legal evaluations, by mediators with legal knowledge. Such
interventions may include pointing out weaknesses and strengths in a party’s position;
predicting the possible court outcome if the case were adjudicated, pointing out other
potential consequences of failing to reach agreement; and/or critiquing, suggesting and
recommending specific solutions. As evaluations are often most effectively delivered in
private, evaluative mediators tend to make greater use of “shuttle diplomacy” than do
facilitators. In highly directive forms of evaluative mediation, the mediator may also exert

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considerable pressure on the parties to reach a resolution. Many proponents of evaluative
mediation are those who entered the mediation field to serve in court-based or private
commercial settings, in which efficiency is valued and most participants are sophisticated
and/or represented by counsel.

Before we examine the debate about how the mediator should act, it may be helpful to
examine the following attempt to categorize the traditional ways that mediators (in litigated
disputes) tend to behave, depending on whether they adopt a broad or narrow approach to
defining the problem and whether they employ a facilitative or evaluative orientation:

Mediator Orientations, Strategies and Techniques

Leonard L. Riskin

12 Alternatives 111, 111-112 (1994)

Each of the two principal questions—does the mediator tend toward a narrow or broad
focus? And, Does the mediator favor an evaluative or facilitative role?—yield responses
that fall along a continuum. Thus, a mediator’s orientation will be more or less broad and
more or less evaluative . . . .

p. 80

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Evaluative-Narrow

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, such as the following, which are listed from
most to least evaluative:

Urge parties to settle or to accept a particular settlement proposal or range.

Propose position-based compromise agreements.

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Predict court (or administrative agency) dispositions.

Try to persuade parties to accept mediator’s assessments.

Directly assess the strengths and weaknesses of each side’s case (usually in private
caucuses).

Facilitative-Narrow

Like the evaluative-narrow, 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 caucuses—to help the participants understand both sides’ legal
positions and the p. 81consequences of non-settlement. Also in private caucuses, he helps
each side assess proposals in light of the alternatives.

Here are examples of the types of questions the facilitative-narrow mediator might ask:

What are the strengths and weakness of your case? Of the other side’s case?

What are the best, worst, and most likely outcomes of litigation? How did you make
these assessments? Have you thought about [other issues]?

How long will it take to get to trial? How long will the trial last?

What will be the associated costs—in money, emotions, or reputation?

Evaluative-Broad

The evaluative-broad mediator also 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’.

Like the evaluative-narrow mediator, the evaluative-broad mediator is likely to request and
study relevant documents, such as pleadings, depositions, and mediation briefs. In
addition, she tries to uncover the parties’ underlying interests by such methods as:

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Explaining that the goal of mediation can include addressing underlying interests.

Encouraging the real parties, or knowledgeable representatives (with settlement
authority) of corporations or other organizations to attend and participate in the
mediation. For instance, the mediator might invite such individuals to make remarks
after the lawyers present their opening statements, and she might include them in
most settlement discussions.

Asking about the participants’ situations, plans, needs and interests.

Speculating about underlying interests and asking for confirmation.

Facilitative-Broad

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. Specifically, she might:

Encourage the parties to discuss underlying interests in joint sessions. To bring out
such interests, she might use techniques such as those employed by the evaluative-
broad mediator.

Encourage and help the parties to develop their own proposals (jointly or alone) that
would respond to underlying interests of both sides.

The facilitative-broad mediator does not provide assessments, predictions or proposals.
However, to help the participants better understand their legal situations, she will likely
allow the parties to present and discuss their legal arguments. p. 82In addition, she might
ask questions such as those listed for the facilitative-narrow mediator and focus discussion
on underlying interests.

In a broad mediation, however, legal argument generally occupies a lesser position than it
does in a narrow one. And because he emphasizes the participants’ role in defining the
problems and in developing and evaluating proposals, the facilitative-broad mediator does
not need to fully understand the legal posture of the case. Accordingly, he is less likely to
request or study litigation documents, technical reports or mediation briefs.

However, the facilitative-broad mediator must be able to quickly grasp the legal and
substantive issues and to respond to the dynamics of the situation. He needs to help the
parties realistically evaluate proposals to determine whether they address the parties’
underlying interests.

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§3.7 THE FACILITATIVE-EVALUATIVE DEBATE: CASE
EXAMPLES AND A HYPOTHETICAL DISCUSSION

Few mediation theorists or practitioners, we think, would quarrel with the propriety of a
facilitative approach to mediation. Many would probably also agree that, in the abstract,
less, rather than more mediator influence over outcomes is to be preferred. Yet, in practice,
for a variety of reasons, mediators—even those who self-identify otherwise—often gravitate
to a more directive or evaluative stance. Why is this so, and why is it controversial?38 In
order to illustrate some of the current controversies concerning the mediator’s proper role,
we present three actual cases. For each, ask yourself: What should this mediator do?

Case One: An Incident of Vandalism

In Philadelphia, citizens can file private criminal complaints against those who have
victimized them by conduct that, while technically “crimes,” do not rise to a level at which
the local prosecutor will generally file charges. Because of their high volume and most
judges’ dislike of such “trivial” community matters, these cases are required to go through a
mandatory mediation process before they can enter the trial system.

A recent mediation was typical of those in the program: The complainant alleged
threatening conduct and minor acts of vandalism (spray-painting a fence, dumping trash on
the lawn) by his next-door neighbor and her teenage son. The volunteer mediator at the
courthouse dispute resolution program spent the first hour of the two-hour session
attempting to get the neighbors to talk with one another, examine the history of the problem
and explore potential tension-avoiding solutions to their conflict. Throughout this period, the
defendant, while not admitting guilt, appeared eager to work out “anything reasonable” for
the p. 83future, including taking steps to control the son’s hours outside. However, the
complainant refused to discuss a resolution on these or any other terms, vowing to “see
that justice is done” in court.

The mediator knows that no judge will listen to this case for more than a few minutes, that
the almost certain resolution is a court-ordered “stay away” order (with no finding of guilt)
and that another day in court will be costly for the disputants in terms of lost work time. She
also has in mind specific ideas for an agreement that will meet the complainant’s concerns
for the future.

Case Two: An Unsophisticated Husband

Husband and Wife recently separated and are locked in a bitter dispute over the custody of
their five-year-old son. Wife has primary custody of the child by mutual agreement. At the
start of this voluntary mediation, Husband seeks twice-weekly contact with the child, once

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on a week night, once on a weekend. Both Husband and Wife have bitter feelings about
their separation and neither thinks that reconciliation is feasible. Despite these feelings,
neither has anything terrible to say about the other as a parent. After a considerable period
of time attempting to resolve this through exploration of their schedules and relationships
with the child, Wife (who has counsel present) proposes one afternoon visit every other
weekend. The mediator knows the offer is way below what any court would award, but that
the judge will also likely rubber-stamp any agreement reached in mediation and signed off
on by a mediator. Husband, who has been quite passive throughout, is unrepresented
(being unable to afford both counsel and his child support obligations) and is unaware of his
rights. Bemoaning his circumstances but nevertheless seemingly poised to accept the offer,
he twice asks the mediator his prediction of what would happen in court.

Case Three: A Serious Slip and Fall Accident

A personal injury suit was filed following an out-of-town tourist’s slip on ice in front of a
private home two winters ago. The plaintiff was quite seriously injured. After the start of
discovery, the parties agreed to attempt to settle the claim through a half-day mediation
effort. Both parties were represented by counsel and were present at the mediation, along
with a representative of the defendant’s insurance carrier. From their presentations and a
summary of the proofs and experts they planned to produce at trial, the privately retained
mediator believes that there is considerable doubt about how a jury would decide the case
as to both liability and damages and that each side would thus have significant risks if it
were tried. The parties, who have very different assessments of the likely trial outcome, are
very far apart in their opening positions with respect to a dollar settlement.

p. 84

What Should the Mediator Do in Each Case? An Imaginary Discussion
Between Facilitative (F) and Evaluative (E) School Representatives

F: What is the one thing that is most unique about mediation, that most distinguishes it
from other forms of dispute resolution? It is that the outcome is a self-determined, rather
than an imposed, decision. And true self-determination is premised on maximizing the
participation of the parties, enabling them to choose the factors and norms on which they
make decisions and encouraging them to create as many of the options for resolution as
they can. This empowers people and makes them less dependent on law or lawyers in
handling conflict. Injecting the law, legal predictions or the mediator’s views, especially if no
one asks for them, undermines this goal. Once an evaluation has been provided or a
proposal recommended, the mediator becomes an authority figure, and the parties will see
him or her as the repository of the solution.

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E: No one would quarrel with self-determination as a good thing. But so long as no one is
being coerced in such a way as to override his or her free will, that principle is better
honored by evaluative mediation. Your opposition to evaluation doesn’t give disputants
much credit. Why does their decisional autonomy suddenly disappear if the mediator floats
an idea (perhaps one based on what the parties themselves have said)? Can’t the
participants hear a legal assessment without being overwhelmed? Indeed, telling the
participants the mediator’s assessment of the likely court outcome can actually enhance
self-determination. It seems to me that a disputant can only exercise real self-determination
if adequately informed of both his non-legal and legal alternatives to a mediated result. We
are hardly empowering people if, as in the first two cases, we let them make important
decisions when they are ignorant or mistaken about the law.39

Telling uninformed parties the law may further self-determination in another way. In my
experience, most lay disputants are intensely interested in at least hearing a mediator’s
prediction of the court alternative and may be reluctant to make a decision without it.
Providing legal information can actually free them from their curiosity about or
overemphasis on the law as a decision factor or at least put it into some perspective as a
guiding principle. To put it in process terms, one may have to evaluate in order to get to
your beloved facilitative format. In the vandalism case, for instance, the complainant
seemed to harbor a completely unrealistic hope of seeing his neighbor rot in jail. Only if he
is disabused of that notion might he be open to talking with his neighbor and to engaging in
finding practical alternative approaches to resolving the conflict.

To the extent that unrepresented parties are required by the court to take part in mediation
prior to trial, it seems to me that the mediator has a special obligation to offer an evaluation.
Parties forced into a process p. 85should not be allowed to reach final agreement without at
least having some access to information about the court alternative40 and fairness norms
that are built into the law.41 While it may be preferable to suggest that they get independent
legal advice from their own lawyer,42 that’s simply not a realistic option for many
unrepresented parties. Besides, if you’re concerned about promoting mediation as an
alternative to litigation, allowing unrepresented, uninformed litigants to make decisions that
are unfair or out of line with likely court outcomes will come back to haunt all of us. How will
Husband in the divorce case feel in a week or a month if he learns that he settled his case
for far less than he would have gotten in court? Do you think he’ll recommend mediation to
his friends?

As for the slip and fall case, I see no problem with the mediator’s evaluating. There is no
danger of overreaching because the parties have lawyers to protect them.

F: Are you done? (Pause) I have a problem with the whole premise of the evaluative
school that court outcomes can be accurately predicted, especially without the benefit of

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witnesses, documents, cross-examination and other protections of a full-fledged trial.
Anyone who has seen courts in action knows that the predicted outcome of a trial-level
proceeding is far from a scientific matter. The most an evaluator can do is provide an
educated hunch about a range of likely outcomes, hopefully with a strong disclaimer.

E: Some information from a disinterested source—even if it’s not perfect and which the
parties are free to ignore or reject—is better than none at all, isn’t it?

F: But here’s another problem: Providing legal information—whether in the form of a
specific prediction about the outcome of a case or more generalized information (e.g.,
“judges rarely jail people in these matters” in the vandalism case)—is not likely to fall evenly
on the parties. Someone—the defendant in Case One, Husband in Case Two—will be
favored and the other person’s position weakened.

Evaluating poses a serious risk to the parties’ perception of the mediator’s neutrality and
impartiality. Won’t it seem that the mediator has either formed a preference for one side or
isn’t dealing evenhandedly with both? Even worse, won’t the mediator actually be
compromising that core principle by helping one side at the expense of the other? Rather
than producing more flexible thinking, might that not actually harden the resolve of the party
favored by the prediction? Might it not also provoke anger, mistrust, the need to save face
or even termination of the mediation by the disfavored party—especially if the evaluation
contradicts that party’s (or lawyer’s) prior evaluation of the strength of his position?43

p. 86

E: That’s a possible risk, I agree. But the mediator’s inaction can be just as problematic.
Nothing could be less impartial than if, say in the divorce case, the mediator sits idly by
while Wife and her lawyer take advantage of uninformed Husband. To do nothing would
give the impression that Wife’s proposed outcome would be perfectly acceptable to the
court when that’s not true. If he remains silent, the mediator is, in fact, favoring the wife.
Evaluation is needed to remain impartial in fact.

Moreover, as to party perceptions, I think you underestimate the intelligence of most
mediation participants. Most negotiators understand that an honest, objective evaluation
does not mean that the mediator is biased.44 Besides, since much evaluation is conducted
in private session or caucus with each side, the other party need not even know what’s
being said.

F: Now we are getting to the heart of the problem—squandering and even perverting the
real potential of the mediation process! The more that private evaluation creeps in, the
further we get from the parties, as opposed to the mediator, being in control of what’s being

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decided. Private sessions, while helpful for some purposes, ought not to become the place
where most of the action takes place. By the end, the mediator may have orchestrated a
deal, but the participants have not created it together in any meaningful sense and may
largely be in the dark about what really took place. Any possibility for enhancing
understanding or the ability to resolve future disputes by talking with each other will have
been undermined.

And another thing: Retreating to private meetings can easily lead to questionable mediator
behaviors. We both know the kinds of manipulative things some mediators will do in order
to broker a deal in a hard-fought case (like Case Three) in which no one can know for sure
what the court outcome will be. To close the gap in positions, the mediator may provide
slanted predictions focusing only on each side’s weaknesses or risks.45

E: I’m not sure that is so troublesome, especially if it’s done to neutralize the negotiators’
overconfidence. It sounds to me as though you might want to examine your motives here.
Is there some anti-law or anti-lawyer sentiment or turf issue operating here?46

F: I wouldn’t say I’m hostile to law or lawyers in mediation. But the logical conclusion from
your argument is that law training should be a requirement for mediating all law-related
disputes. That would effectively bar many outstanding non-lawyers from mediating in areas
in which skills other than legal analysis or argumentation should be most valued. Maybe we
ought to not even call these two activities the same thing. Call one “mediation” and the
other “neutral evaluation” p. 87and then at least the public will be able to make an informed
choice47 of the kind of neutral they want.

E: Now it sounds as if we’ve gotten down to a debate about semantics. But even here we
disagree. Many parties—in court and community mediations, for example—don’t get to
choose their mediator. More important, it’s too late in the game to go back. All of the major
forms of the process—from the narrowest of “settlement-oriented” to the most “therapeutic”
—are widely understood to be “mediation.” Usage determines meaning.48

F: Would you at least agree that an evaluation shouldn’t take place without the parties’
consent?

E: Hmm. I’m gonna have to think about that one . . . .

Despite the polarized viewpoints depicted in this conversation, the reality of much
mediation practice is harder to classify. For example, most facilitators would probably agree
that mediators sometimes need to serve as “agents of reality,” testing a party’s seemingly
unrealistic or unwise thinking or positions, often by asking questions.49 (To Husband in
Case Two: “How do you think you’ll feel about this agreement in three months?” To victim in
Case One or to Wife in Case Two: “Do you think a court would think that a fair result?” But

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isn’t such questioning just a softer, more indirect form of evaluation—by “Socratic
dialogue”?50 Might it not at least be perceived by some disputants that way? (e.g., Wife in
Case Two: “What are you trying to tell me?”) If so, as with the Great Books debate we
described in Chapter 2, the two schools may be closer in practice than they sometimes
profess.

§3.8 THREE FUNDAMENTAL NORMS: SELF-
DETERMINATION, IMPARTIALITY AND NEUTRALITY

The speakers in our hypothetical conversation make reference to three norms that are
considered fundamental to the mediation movement: party self-determination, mediator
impartiality and mediator neutrality.51 Each of these concepts is susceptible to different
meanings and, in operation, is potentially in tension with the others. How do we define
these terms? How might different shadings of meaning affect a mediator’s philosophy and
role conception?

p. 88Party self-determination. Most observers and the profession’s ethical
standards52 proclaim this to be a foundational principle underlying mediation. Based
on respect for individual autonomy, party self-determination is what differentiates
mediation from all other processes in which a neutral third party intervenes in a
conflict resolution capacity. It can be defined as the participants’ right, once in
mediation, to decide (a) whether to continue to participate and (b) on what terms, if
any, to reach an agreement. We are talking about consensual decision making during
mediation, as opposed to voluntariness about entering the process. Even those who
are required to enter mediation have the right to reject any particular resolution or to
discontinue negotiations. At a minimum, self-determination requires that participants
have adequate capacity to make decisions and that their decisions are not the
product of coercion. For some mediators, however, self-determination means more:
the right to make decisions that are well considered and fully (or at least reasonably)
informed.53

Mediator impartiality. “Impartiality,” as we define the term,54 means that the
mediator does not favor—or appear to favor—any one party in mediation over any
other. Favoritism might be caused by a prior relationship or alliance with a mediation
participant or by a personal bias—conscious or not—for or against a participant based
on that person’s identity, background, position, personality or behavior at the
mediation. Impartiality in action thus means treating all participants evenhandedly.

Mediator neutrality. Neutrality means that the mediator has no personal preference
that the dispute be resolved in one way rather than another. The mediator is there to

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help the parties identify solutions that they find acceptable, not to direct or steer the
parties toward results he favors.55 Understood this way, neutrality means indifference
regarding outcomes.

The ways in which neutrals define these norms and the relative values they assign to them
may go a long way to determining the role orientation they adopt. Mediators who believe
that party autonomy doesn’t mean much if the parties lack basic information with which to
exercise it are likely to adopt a more evaluative orientation to their role. Mediators who have
confidence in the parties’ ability to make decisions and develop solutions based on their
own values and interests and who worry about the potentially coercive effects of “expert”
advice-giving are more likely to adopt a more facilitative stance. Transformative mediators
take the norm of non-directive party self-determination furthest, renouncing all efforts by the
mediator to direct the flow of the disputants’ conversation, including the p. 89topics they
discuss, the perspectives they bring to their discussions and the choices they make. For a
transformative mediator, assessments and evaluations are never appropriate because they
involve mediator influence and are disempowering.56

Are “Impartiality” and “Neutrality” States of Mind? Or Are They Actions? The answer
is both, of course. As a state of mind, the mediation norms of impartiality and neutrality
represent ideals. In many cases, it will be difficult for the mediator to maintain a completely
impartial and neutral state of mind. Mediators are human, after all, and we all have biases
that affect how we react to different people (“this person is obnoxious”) or judge their ideas
(“that suggestion is really stupid”). For example, returning to our case of the
unsophisticated Husband, a mediator might simultaneously feel frustration and annoyance
with Husband’s passive, whiny bargaining style, while at the same time feeling antipathy for
the solution that Wife proposes, because it is so one-sided.

The goal for the mediator is to be aware of her own biases, to monitor them during the
mediation process and to try to demonstrate impartiality and neutrality at all times through
her conduct. With regard to impartiality, this means treating the participants in comparable
ways during the mediation, so that neither party feels that the other has been favored. With
regard to neutrality, this means making it clear that, even if the mediator expresses doubts,
makes suggestions or provides direction, the parties are entirely free to reject these
interventions and to reach their own decisions, based on their own interests, values and
priorities. All of this is easier said than done, of course, because, in addition to being
conscious of what she says, a mediator must be aware of how her nonverbal cues can
betray thoughts or feelings she may be trying to keep under wraps.

§3.9 “CONTEXT-DRIVEN” MEDIATION: EMPLOYING THE
RIGHT APPROACH AT THE RIGHT TIME

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Most mediators, we believe, have a preferred approach to defining problems and a “default”
role orientation that—all things being equal—they bring to the mediation process. We do as
well and it is set out in this book. Here is a summary:

With regard to problem definition, we seek to employ a broad problem-defining and
problem-solving approach wherever feasible. Exploring the parties’ true interests, treating
psychological issues as potentially important, encouraging mutual perspective-taking and,
where possible, a repair or restoration of relationships has the potential to produce better,
more durable and more emotionally satisfying outcomes for participants—resolutions that
“satisfy the heart.”57 In addition, broad problem-solving can take much of the tension out of
the process by reducing one of the major sources of hypercompetitive negotiation conduct
—p. 90a fixed-pie or zero-sum view of the world. Finally, as a matter of professional
satisfaction, mediators sometimes talk about the “high” that comes from presiding over a
process that does not just settle a case, but creates value, improves the climate of
relationships, and helps people see each other in new ways. We have often experienced
this feeling, and it is very gratifying.

With regard to the approach to conducting the process, we favor using a facilitative mode
and avoiding legal evaluation when it is neither desired by the parties nor potentially would
be useful in helping them to resolve their conflict. We also categorically reject the use of
interventions that are— or may be perceived by the disputants to be—highly directive or
coercive. Assisting people in disputes to make their own decisions without unwelcome
direction or advice best ensures “ownership” of those choices.

But our model also fully embraces the use of appropriate mediator persuasion—including
evaluation — when it will advance the goal of informed decision making. Mediator
evaluation is in many cases a helpful, even essential, tool in overcoming barriers to
settlement—for example, egocentric overconfidence caused by cognitive and motivational
bias. Moreover, it is often requested—and sometimes strongly desired—by disputants or
their representatives. In such situations, we see no principled reason to withhold evaluative
feedback. In Chapter 9, we analyze in detail the challenges in providing legal evaluations
and the various ways this can be done effectively and ethically.

Although we strongly believe that helping the parties learn to deal better with each other
and with conflict are worthy goals in many mediation settings, and value making the most of
possible educational “moments” in most mediations, this text neither emphasizes nor
endorses the transformative model. First, as noted, we do not see an inherent tension
between transformative and problem-solving objectives: Problem-solving processes can
also develop mutual empathy and strengthen the conflict management capacities of their
participants. Second, in our experience, most mediation participants enter mediation
seeking practical solutions to real problems; we see the mediator’s primary duty as

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attempting to serve the parties’ own goals. Having said this, the model we will put forth
does embrace several hallmark practices of transformative mediation. We will point these
out as they arise in the text.

As you start working as a mediator, you will begin to develop your own orientation toward
the role. Your role conception will likely be affected by your own sense of the most
important goals of mediation, your ideas about justice and fairness, your conflict
management style and the degree of confidence you have in your overall judgment. Are
you comfortable managing a process rife with emotion? Do you feel that you can make the
“therapeutic” effort to encourage empathy or repair relationships? Do you feel that you have
the legal or other relevant technical knowledge sufficient to support an evaluative
orientation? Are you comfortable appearing authoritative?

Instead of adhering rigidly to a single style, the most effective mediators, we believe, are
flexible—able to employ behaviors associated with each of these different approaches in
adapting to the context and circumstances of each dispute. Modern mediation styles and
approaches are, in practice, often more akin to points along a continuum than distinct
categories, with practitioners, while having a preferred or default style, often employing
different approaches in different p. 91cases and more than one approach at different times
in the same case.58 Varying combinations of problem approaches and role definitions can
yield a form of hybrid practice—evaluators who explore emotions, for example, and
facilitators who instill doubt.59 Of necessity, mediators are confronted with many role
choices during the course of each mediation they conduct. The best mediators make these
decisions consciously and deliberately.

In this book, we endorse a “context-driven” model of mediation—one in which the mediator
begins with a preferred approach but also makes well-considered adaptations about the
problem to be addressed and the role to be played in response to specific variables present
in each case. Some of these variables may affect the mediator’s problem definition, some
may affect the mediator’s decisions regarding a facilitative or evaluative stance and some
may affect the mediator in both dimensions. What are some of these variables?

§3.10 VARIABLES IN DETERMINING THE RIGHT GOAL
AND ROLE

The Parties. The parties themselves often influence the process in crucial ways. Consider
these variables:

What are the parties’ goals? How do they or their representatives want to define
the problem? In many cases, the disputants will be malleable and will take their cues

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about the goals of mediation from the mediator. But a more common scenario will be
a highly interactive one, with the mediator and disputants jointly setting or negotiating
goals for the process. As we have suggested, many participants will enter mediation
with a narrow adversarial view of the problem and the kind of solution they think is
possible or acceptable. They may wish a speedy end to the matter or be unwilling to
share enough information to make a broad, interests-based approach feasible. A
party uncomfortable with feelings may be unwilling to participate in any process that
seems too “therapeutic.” The mediator may or may not be able to transform such
dynamics. But whatever happens, defining the problem is not just up to the mediator.
Rather, it is likely to be a dynamic and interactive process, with the parties exerting
great influence.

What role definition do the parties want the mediator to employ? Have the
parties chosen the mediator or was she appointed? Do they have an expectation as
to how the mediator will carry out her role? Sometimes the parties or their
representatives will want the mediator to play a purely facilitative role, sometimes they
will seek evaluation, sometimes a transformative approach. (Often, they won’t know
or care.) Since much mediation is contractual, p. 92the mediator and the parties can
often negotiate such questions in advance or change their preference during the
process. Even where the mediator is appointed, role issues can be discussed and
agreed to before or during the mediation process.

Can each party negotiate effectively without the mediator’s input? Do the parties
both have access to factual or legal information relevant to the dispute? Do they have
comparable bargaining ability? Is there a realistic opportunity for them to obtain
independent advice before going to trial if the case does not settle? Will the parties be
able to function adequately in court in the event of no resolution? Might they—or their
representatives—be operating under the influence of one or more cognitive or
motivational biases that may distort their viewpoint and impact their decision making?
These sorts of factors may have an effect on the perceived need for an evaluation.

Are the parties sophisticated and/or represented by counsel? This potentially
cuts both ways. For some facilitative mediators, the fact that the parties are
represented by counsel frees them from an arguable need to make evaluative
statements about the law, the parties’ risks or likely court outcomes. For other
mediators, the fact that both parties are sophisticated about their rights and/or
represented by counsel lessens the potential danger that they will be unduly
influenced or coerced. In such cases, why not offer one’s views? (Purely
transformative practitioners would not provide an evaluation in any event.)

How much hostility is there between the parties? There is some empirical

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evidence that directive mediator approaches, such as suggesting possible
agreements, are effective in producing settlements when hostility between the parties
is low, but ineffective and even counterproductive when hostility between the parties is
high.60

The Dispute. The characteristics of the dispute itself may render it more or less suitable for
one kind of approach or another. For example:

Is this a single-issue or a divisible/multiple-issue problem? Disputes defined in
single-issue terms (What price? Since liability is accepted, how much in damages?
What wage rate?) tend to lend themselves to narrow problem definitions and to
distributive bargaining. By contrast, potentially divisible-issue or multi-issue problems
(“My price will be affected by your scheduling demands.” “I want both weekend and
weekday time with our son.” “I’ll take less in damages if you can pay me today in
cash.” “Can we trade a lower wage rate for better health benefits or improved
safety?”) are, by definition, more susceptible to interest-based trades. When such
trades are available and openly discussed, the mediator may find it easier to maintain
a facilitative stance than would be the case in a distributive negotiation.

p. 93How predictable is the outcome in the court or other alternative? Is the
underlying legal dispute governed by well-established, “black-letter” principles? Are
there clear industry or community standards that pertain to the transaction? The more
settled and applicable these norms, the more likely that the mediator will use
evaluation to instill legitimate factual or legal doubt as a means of inducing flexibility
and openness to interests exploration by adversarial participants.

Is this a “relational” dispute or one-time interaction? Have any of the disputants
had a past or ongoing relationship? Are those persons present at the mediation? Is
there a possibility of future dealings? When the parties contemplate future
interactions, they may be more likely to be willing to explore each other’s interests
and be otherwise more open and cooperative—conditions conducive to the success
of a broad, facilitative approach. (Working on their ongoing relationship going forward
might also argue for the transformative model.) When the parties are strangers and
anticipate no future relationship, they are much more likely to take a narrow,
settlement-oriented approach. Falling in the middle of the continuum are cases in
which the parties in a dispute have had a past relationship but are ending it. While
some disputants in this situation may be willing to explore their past relationship and
try to clear the air, others may prefer to focus solely on getting the dispute settled as
efficiently as possible.

What are the main barriers to a negotiated resolution? Recall the emotional,

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strategic and cognitive reasons why negotiations fail. The mediator’s interventions
should reflect her diagnosis of the barriers that may be preventing the parties from
bargaining more productively. For example, if the principal barrier to settlement is the
parties’ bad feelings about some angry words exchanged between them in their last
meeting, assessing the parties’ legal risks (as opposed to facilitating an exploration of
their past dealings) may miss the boat entirely. (As noted earlier, many of these
dispute barriers could also be seen as part of the “parties” variable described above.)

External Factors. Finally, the setting in which the mediator works and other external
factors can have a dramatic impact on the type of mediation practiced:

Are there significant time constraints? Is there a time limit, an imminent related
event (a trial, a strike) or similar constraint that places a premium on efficiency? If the
mediation is conducted in a courthouse, is there a big caseload that day? Does the
mediator or do any of the participants have to be someplace else soon? As
negotiation scholars Douglas Stone, Bruce Patton and Sheila Heen have written, real
conversations cannot be conducted “on the fly.”61 Because broad problem-solving,
exploration of feelings and relationship-building or repair take time, mediations
conducted under time pressure tend to be more narrow in their focus, with mediators
likely to p. 94engage in more persuasive interventions in order to serve the parties’
settlement objectives.

What is the mediation “culture?” Does the host court, agency or other institution
have a clear agenda regarding the definition of a “successful” mediation? Is the goal
of resolving cases quickly and efficiently valued over other criteria? Does the mediator
feel a sense of obligation to that agenda? Are there statutes, court rules or contractual
provisions that require or prohibit the use of a particular role approach?

This listing is only suggestive of the complex currents and crosscurrents that may be at
work in each case. As should be apparent from the list, some of these variables do not fall
neatly on one side or another of the debate over what approach a mediator ought to adopt.
Furthermore, the unique combination of party, dispute and external factor variables
presented in any particular case may point the mediator in differing directions and to the
possible need to change course—even multiple times—during a single mediation.

Video Clip 3-A.

Video Clip 3-B.

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To illustrate these role choices and their potential impact, here are two different, essentially
full-length mediations of the same consumer dispute (Wilson v. DiLorenzo).

As you watch them, consider the following questions:

How would you characterize the primary orientation of the male mediator? The female
mediator? What were the most significant differences in their approaches? Be
specific.

What variables in this dispute made one or another mediator role preferable?

How did their role conceptions affect their behaviors while conducting the mediation?

Does each mediator adhere to his or her primary approach consistently throughout
the mediation? If not, where did he or she deviate?

What did you like and not like about the way each mediator conducted the process?
Be specific. Which mediator’s approach did you prefer? Why? Would your views have
been similar or different if you had been one of the disputants?

Did their differing approaches affect the kinds of outcomes produced? If so, how?
Why?

Were there transformative aspects or moments in either mediation?

REVIEW PROBLEM

Imagine that you are a third-year litigation associate and part of your firm’s new dispute
resolution practice. You will serve as the mediator in two upcoming cases during the next
several weeks. What role orientation(s): broad or narrow problem definition, facilitative,
evaluative or transformative—do you anticipate employing in each case and why? What
case, personal preference or other factors p. 95affect your thinking? Be explicit about any
assumptions you are making about the envisioned proceedings.

1. A pro bono child custody mediation in your city’s family court in which the 25-year-old
father of a two-year old boy has petitioned to obtain weekly overnight custody rights
with the child. The boy’s mother—to whom the father was never married—is the
primary custodian and is opposed. The father left the mother when she got pregnant
and has seen the child sporadically, about ten times, mostly at the mother’s or
maternal grandmother’s house. The parents are both factory workers, unmarried, and
live about a mile apart.

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2. A threatened employment discrimination charge by a junior faculty member against
her university and department chair. She claims she has been denied equitable salary
increases, research funds, teaching leaves, and class scheduling preferences
because of her gender and that the chair has created a hostile work environment. She
is a well-regarded scholar, likely to get tenure and to be lured by other schools. Your
firm has been hired by the university to mediate this dispute. Both sides have lawyers.

The top of the square is labeled Evaluative. The bottom of the square is labeled Facilitative.
The left side of the square is labeled Problem Definition, Narrow. The right side of the
square is labeled Problem Definition, Broad.

Upper-left quadrant:

Urges/pushes parties to accept narrow (position-based) settlement

Proposes narrow (position-based) agreement

Predicts court or other outcomes

Assesses strengths and weaknesses of each side’s case

Upper-right quadrant:

Urges/pushes parties to accept broad (interest-based) settlement

Develops and Proposes broad (interest-based) agreement

Predicts impact (on interests) of not settling

Educates self about parties’ interests

Lower-left quadrant:

Helps parties evaluate proposals

Helps parties develop and exchange narrow (position-based) proposals

Asks about consequences of not settling

Asks about likely court or other outcomes

Asks about strengths and weaknesses of each side’s case

Lower-right quadrant:

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Helps parties evaluate proposals

Helps parties develop and exchange broad (interest-based) proposals

Helps parties develop options that respond to interests

Helps parties understand interests

My Notes

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