4 Harv. Negotiation L. Rev. 1
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Harvard Negotiation Law Review
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ARTICLE: The Lawyer’s Philosophical Map and the Disputant’s Perceptual Map: Impediments to Facilitative Mediation and Lawyering
NAME: Chris Guthrie+
+ Acting Associate Dean, Associate Professor of Law & Senior Fellow at the Center for Study of Dispute Resolution, University of Missouri School of Law. B.A. 1989, Stanford; Ed.M. 1991, Harvard; J.D. 1994, Stanford. For their advice and comments on this article, I am grateful to Richard Birke, Tracey George, Jim Levin, Bobbi McAdoo, Richard Reuben, Len Riskin, Jean Sternlight, and Josh Stulberg. For financial support, I am again grateful to the University of Missouri Law School Foundation.
… In contrast, lawyers – who tend to be better speakers than listeners, better thinkers than feelers, and better advisors than counselors – operate according to a “standard philosophical map” that compromises their ability to function successfully as purely facilitative mediators. … For all their analytical skills, most lawyers seem fairly uninterested in, and unskilled at, dealing with emotional and interpersonal content. … Even assuming the lawyer-mediator successfully frames the negotiation issues in non-legalistic and nonjudgmental terms – e.g., “Patty’s fall,” “the fruit aisle,” and “customer relations” – the lawyermediator is likely to have difficulty behaving in a purely facilitative way when he then attempts to “move the parties toward generating ideas, options or alternatives which might resolve the case. … Second, assuming lawyers should enrich the standard philosophical map, is it possible for them to do so? The empirical evidence on this point is unclear, but I believe it supports the proposition that one socializing institution – law school – can help enrich the lawyer’s standard philosophical map. … ” But there is also evidence to suggest that lawyers acquire the standard philosophical map – or that it becomes more prominent – during law school. … Because law school seems to play such a formative role in charting the lawyer’s standard philosophical map, law school can probably play a formative role in charting a better map. …
Professor Leonard Riskin developed his controversial grid to “categorize the various approaches to mediation.” 1 Consistent with his pluralistic view, Riskin argues that mediation includes both facilitation and evaluation. 2 Facilitative mediation occurs where the mediator strives to help the parties communicate with one another so they can resolve their dispute on their own terms. Mediators who use a facilitative approach “assume that [their] principal mission is to clarify and to enhance communications between the parties in order to help them decide what to do.” 3 Evaluative mediation, by contrast, occurs where the mediator tries not only to help the parties communicate with one another but also to provide the parties with information and opinions on the substance of their dispute. Evaluative mediators, thus, “assume that the participants want and need the mediator to provide some direction as to the appropriate grounds for settlement – based on law, industry practice or technology.” 4
Riskin’s categorization of mediation has engendered much debate among academics and practitioners. 5 Although most in the mediation community accept Riskin’s positive assertion that mediation [*147] as currently practiced includes both facilitation and evaluation, 6 a vocal group of purist critics rejects Riskin’s pluralist view of mediation on normative grounds. These purist critics – including such prominent mediator-scholars as Professors Kim Kovach, 7 Lela Love, 8 and [*148] Josh Stulberg 9 – argue that mediation is in fact, and should be, solely a facilitative process “designed to capture the parties’ insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes.” 10 For the purists, evaluation has no place in mediation. 11
based on or prescribing a norm or standard
/ˈɪn.saɪt/ n [C or U]
(the ability to have) a clear, deep and sometimes sudden understanding of a complicated problem or situation
It was an interesting book, full of fascinating insights into human relationships.
/ˈɪn.saɪt.fəl/ adj approving
(Definition of insight noun from the Cambridge Advanced Learner’s Dictionary)
I do not seek in this article to add my voice to the chorus debating the relative merits of the pluralist and purist approaches to mediation. 12 Instead, despite my belief that the pluralists win this debate as both a positive and normative matter, I intend to imagine for purposes of this article that the purists actually prevail upon state legislatures, regulators, mediation trainers, and members of the mediation community at large to mandate a purely facilitative approach to mediation. Having successfully conjured up an image of [*149] this purely facilitative mediation world, I then seek to make the impertinent claim that mediation is highly unlikely to be a purely facilitative process as long as lawyers serve as mediators.
This claim rests on two intuitions, one about lawyers and the other about non-lawyers’ perceptions of lawyers. My first intuition is that lawyers are unlikely to possess the personalities, predispositions, skills, and training necessary to mediate in a purely facilitative, non-evaluative way. The facilitative mediator, according to the purists, aims to reorient parties toward one another, to listen carefully, to help the parties communicate, to attend to emotions and relationship issues, and to avoid opining based on law. 13 The professionals who seem best-suited to mediate according to the purist model are psychotherapists, social workers, school counselors, clergy, and others who are inclined toward, and thoroughly trained in, the use of such skills. In contrast, lawyers – who tend to be better speakers than listeners, better thinkers than feelers, and better advisors than counselors – operate according to a “standard philosophical map” 14 that compromises their ability to function successfully as purely facilitative mediators.
My second intuition is that disputants perceive lawyers and non-lawyers differently. They imagine that lawyers possess greater knowledge of the law and legal system, less emotional and interpersonal sensitivity, and lower ethical standards than other professionals who might serve as mediators. This means, in turn, that disputants are likely to perceive facilitative behavior on the part of lawyer-mediators differently than identical behavior on the part of non-lawyer-mediators. Suppose, for instance, that a mediator asks a plaintiff in a personal injury case the following facilitative question: “Can you describe what your life has been like since the accident?” Disputants are likely to ascribe different connotations to this question – even if it is phrased the same way, spoken in the same tone, and accompanied by identical body language – depending upon the professional background of the mediator. If the mediator is a psychotherapist, for instance, disputants are likely to perceive that the mediator is asking the question out of genuine interest in the plaintiff’s feelings. If the mediator is a lawyer, the disputants are more likely to suspect that the mediator is asking primarily to get a sense of the money damages appropriate to the case. Disputants, in short, are likely to share a “standard perceptual map” that predisposes them to [*150] view lawyer-mediators as evaluative rather than facilitative dispute resolvers.
There is a growing body of empirical evidence on the lawyer’s philosophical map and the non-lawyer’s perceptual map. Drawing from that evidence, and from what can reasonably be inferred from it, I argue in this article that mediation is unlikely to be purely facilitative as long as lawyers serve as mediators. I begin in Part I by describing the purist approach to mediation. In Part II, I use available empirical evidence as well as a mediation hypothetical to develop my argument that lawyer-mediators compromise purely facilitative mediation. Finally, I conclude in Part III by briefly considering some of the implications of this argument for lawyering. Specifically, I explore whether lawyers can – and whether they should – behave differently.
I. The Purist View of Mediation
Mediation is a process in which an impartial third party helps others resolve a dispute. 15 Mediation differs from litigation, as well as arbitration and many other dispute resolution processes, in that the mediator, in contrast to a judge or arbitrator, is not authorized to impose a decision. 16 Rather, the mediator is authorized only to aid the parties in developing their own agreements. 17 Mediation, in short, is “facilitated negotiation,” 18 and the mediator is the negotiation facilitator.
While the purists acknowledge that a range of facilitative and evaluative activities currently fall under this generally accepted definition of mediation, 19 they reject this inclusive conception of mediation on normative grounds. For the purists, mediation must be a purely facilitative, non-evaluative process in which “parties are taught how to resolve their own disputes, listen to each other differently, broaden their own capacities for understanding and collaboration, and create resolutions that build relationships, generate more harmony, and are ‘win-win.'” 20
Because the purists view mediation as a purely facilitative process, the purists expect the mediator to behave in a purely facilitative [*151] way. To do so, the facilitative mediator assists “disputing parties in making their own decisions and evaluating their own situations.” 21 Through the careful deployment of communication skills, information gathering and organizing skills, and “counseling and calming skills,” 22 the facilitative mediator may “push disputing parties to question their assumptions, reconsider their positions, and listen to each other’s perspectives, stories, and arguments” and may “urge the parties to consider relevant law, weigh their own values, principles, and priorities, and develop an optimal outcome.” 23 The facilitative mediator may not, however, offer “an opinion or judgment as to the likely court outcome or a ‘fair’ or correct resolution of an issue in a dispute.” 24
The purists prescribe mediator facilitation and proscribe mediator evaluation for three primary reasons. First, the purists argue that mediation “should stand as a distinct and clear-cut alternative to the evaluative and frequently highly adversarial processes that lawyers know best.” 25 The civil litigation system rests on an adversarial paradigm, which posits that the “truth” of a dispute emerges through the presentation of competing positions to a judge or jury empowered to decide by applying rules of law to the “facts” asserted by the disputants. 26 Like litigation, such familiar “alternative” dispute resolution processes as arbitration 27 and “rent a judge” procedures 28 are premised on the adversarial paradigm. Because disputants can participate in any number of adversarial, evaluative dispute resolution processes, the purists argue that “we need a genuine alternative to the adversarial paradigm of disputants who fight and a neutral who assesses.” 29 That alternative, claim the purists, is a purely facilitative, non-evaluative mediation process.
[*152] Second, the purists argue that evaluation undermines party self-determination, which they see as “the fundamental goal of mediation.” 30 They contend that evaluative behavior undermines party self-determination because the mediator’s words and actions have a profound impact on the parties’ ability to exercise their self-determination. “The truth is that we never know what happens when we utter something,” Love argues. “We never know the weight it has with people.” 31 Specifically, mediator evaluations may redirect the [*153] parties from each other to the mediator, 32 lock parties into adversarial negotiation positions, 33 prevent parties from sharing information with one another, 34 and stop parties from engaging in creative problem-solving. 35 In short, mediator evaluation may prevent parties from “crafting outcomes for themselves.” 36
n1. Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negot. L. Rev. 7, 13 (1996) [hereinafter Riskin, Grid]; see also Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, 12 Alternatives to High Cost Litig. 111, 111 (1994) [hereinafter Riskin, Mediator Orientations].
n2. See, e.g., Riskin, Grid, supra note 1, at 17.
n3. Id. at 24.
n4. Riskin, Mediator Orientations, supra note 1, at 111. To bring the distinction between facilitative and evaluative mediation into the sharpest possible focus, Riskin classifies behaviors that fall at the extreme end of each type of practice: “At the extreme of [the] facilitative end,” Riskin explains, “is conduct intended simply to allow the parties to communicate with and understand one another.” Riskin, Grid, supra note 1, at 24. An extreme evaluative mediator, by contrast, engages in “behaviors intended to direct some or all of the outcomes of the mediation.” Id.
n5. See, e.g., James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 Fla. St. U. L. Rev. 919, 919 (1997) [hereinafter Alfini, Discussion] (noting that the debate over facilitative and evaluative mediation “is raging in the law reviews and the literature on dispute resolution”); Carrie Menkel-Meadow, When Dispute Resolution Begets Disputes of Its Own: Conflicts Among Dispute Professionals, 44 UCLA L. Rev. 1871, 1887 (1997) (“The current, most heated debate concerns the question whether mediation is facilitative or evaluative or both.”); Leonard L. Riskin, Foreword, 2000 J. Disp. Resol. 245 (introducing a symposium on the facilitative/evaluative debate); Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing A Flexible Concept of the Mediator’s Role, 24 Fla. St. U. L. Rev. 949, 949-50 (1997) (noting that the facilitative versus evaluative debate is raging in Florida and nationally) [hereinafter Stempel, Beyond Formalism]; Harry M. Webne-Behrman, Forum, The Emergence of Ethical Codes and Standards of Practice in Mediation: The Current State of Affairs, 1998 Wisc. L. Rev. 1289, 1299 (“Mediators are currently engaged in significant professional debates that will impact modes of practice in the coming generation. Nowhere is this more acute than in the debate between ‘evaluative’ and ‘facilitative’ orientations to mediation.”); Should Mediators Evaluate? A Debate Between Lela P. Love and James B. Boskey, Cardozo Online J. Conflict Resol. (Dec. 10, 1997) [hereinafter Love/Boskey Debate].
n6. Even some of the harshest critics of the normative implications of Riskin’s grid accept its descriptive accuracy. Professors Kim Kovach and Lela Love, for instance, concede that the Riskin Grid is descriptively accurate, see Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin’s Grid, 3 Harv. Negot. L. Rev. 71, 76 (1996) [hereinafter Kovach & Love, Mapping Mediation], and that regulatory regimes “mirror[ ] the inclusive picture of mediation offered by the Grid,” id. at 82. See also Kathy Kirk, Mediation Training: What’s the Point, Are the Tricks Really New, and Can an Old Dog Learn?, 37 Washburn L.J. 637, 643 (1998) (noting that “in Kansas there are two distinct styles of mediation used: facilitative and evaluative”).
While most appear to accept the descriptive accuracy of the Riskin Grid, some scholars challenge it. See, e.g., John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 Fla. St. U. L. Rev. 839, 850 n.40 (1997) (contending that “it is more useful to think of this as a continuum rather than a discrete dichotomy”); Stempel, Beyond Formalism, supra note 5, at 952 (arguing that “the view that mediators act as either facilitators or evaluators represents a triumph of excessively formalist thinking at a time when effective dispute resolution law and policy require a functional approach”); Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the ‘Grid’ Lock, 24 Fla. St. U. L. Rev. 985, 986 (1997) [hereinafter Stulberg, Piercing] (calling Riskin’s “facilitative/evaluative dichotomy” a “false one”).
Others offer alternative models of mediation. See, e.g., Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition 28-32 (1994) (distinguishing between “transformative” and “problem solving” mediators); Deborah M. Kolb, The Mediators 23-45 (1983) (distinguishing between “orchestrators” and “deal-makers”); James J. Alfini, Trashing, Bashing, and Hashing it Out: Is This the End of ‘Good Mediation’?, 19 Fla. St. U. L. Rev. 47, 66-73 (1991) (identifying “trashing,” “bashing,” and “hashing it out” as three styles of mediation) [hereinafter Alfini, Trashing]; Jeanne M. Brett et al., Mediator Style and Mediation Effectiveness, 2 Negotiation J. 277, 280 (1986) (distinguishing between deal-making mediators and those who engage in shuttle diplomacy); Ellen A. Waldman, Identifying the Role of Social Norms in Mediation: A Multiple Model Approach, 48 Hastings L.J. 703, 707 (1997) (identifying “norm-generating,” “norm-educating,” and “norm-advocating” as three models of mediation).
n7. See Kimberlee K. Kovach & Lela P. Love, ‘Evaluative’ Mediation is an Oxymoron, 14 Alternatives to High Cost Litig. 31 (1996) [hereinafter Kovach & Love, Oxymoron]; Kovach & Love, Mapping Mediation, supra note 6.
n8. See Kovach & Love, Mapping Mediation, supra note 6; Kovach & Love, Oxymoron, supra note 7; Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 Fla. St. U. L. Rev. 937 (1997) [hereinafter Love, Top Ten Reasons]; Love/Boskey Debate, supra note 5 (comments of Lela P. Love).
n9. See Stulberg, Piercing, supra note 6. Stulberg’s critique differs from Kovach and Love’s in that he believes Riskin’s “facilitative/evaluative dichotomy is a false one …” Id. at 986. Nevertheless, he shares their view that mediation should be understood solely as a facilitative process. Id. (“I argue that any orientation that is ‘evaluative’ as portrayed on the Riskin grid is conduct that is both conceptually different from, and operationally inconsistent with, the values and goals characteristically ascribed to the mediation process.”).
n10. Stulberg, Piercing, supra note 6, at 1001.
n11. See generally sources cited supra notes 7-9.
n12. See sources cited supra notes 7-9; see also Marjorie Corman Aaron, ADR Toolbox: The Highwire Art of Evaluation, 14 Alternatives to High Cost Litig. 62, 62 (1996) (identifying “strategies mediators can use to reduce the risks of evaluation”); Alfini, Discussion, supra note 5 (moderating a debate involving Donna Gebhart, Lela Love, Cheryl McDonald, Robert Moberly, Javier Perez-Abreu, Kathy Reuter, Carmen Stein, Jeff Stempel, and Lawrence Watson on the relative merits of evaluative and facilitative mediation); Alfini, Trashing, supra note 6; John Bickerman, Evaluative Mediator Responds, 14 Alternatives to High Cost Litig. 70 (1996) (responding to Kovach and Love); Dwight Golann & Marjorie Corman Aaron, Using Evaluations in Mediation, 52 Disp. Resol. J. 26, 26 (1997) (attributing to others the argument that “evaluation is a legitimate weapon in the mediator’s arsenal”); Robert B. Moberly, Mediator Gag Rules: Is It Ethical For Mediators To Evaluate Or Advise?, 38 S. Tex. L. Rev. 669, 678 (1997) (arguing “against ethical rules that prohibit mediator evaluation”); James H. Stark, The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, From An Evaluative Lawyer Mediator, 38 S. Tex. L. Rev. 769 (explaining how and when it is appropriate to offer an evaluation); Stempel, Beyond Formalism, supra note 5, at 950 (endorsing “flexible mediation that permits judicious use of evaluative techniques” and arguing that “conceptual oversimplification occurs when the debate is cast in the wooden form of evaluation versus facilitation”); Donald T. Weckstein, In Praise of Party Empowerment – And Of Mediator Activism, 33 Willamette L. Rev. 501, (1997) (advocating activist or evaluative mediation).
n13. See generally infra Part I.
n14. See Leonard L. Riskin, Mediation and Lawyers, 43 Ohio St. L.J. 29, 43-44 (1982) [hereinafter Riskin, Philosophical Map].
n15. See Riskin, Grid, supra note 1, at 7.
n16. See, e.g., Leonard L. Riskin & James E. Westbrook, Dispute Resolution and Lawyers 313 (2d ed. 1997).
n18. See Riskin, Grid, supra note 1, at 13.
n19. See supra note 6.
n20. Love, Top Ten Reasons, supra note 8, at 943-44.
n21. Id. at 939.
n22. See Kimberlee K. Kovach, Mediation: Principles And Practice 36 (1994).
n23. Love, Top Ten Reasons, supra note 8, at 939.
n24. Kovach & Love, Mapping Mediation, supra note 6, at 80.
n25. Kovach & Love, Oxymoron, supra note 7, at 32.
n26. See, e.g., Lon L. Fuller, The Adversary System, in Talks on American Law 34-36 (Harold J. Berman ed., 2d. ed. 1971).
n27. “Arbitration typically contains the essential elements of court adjudication: proofs and arguments are submitted to a neutral third party who has the power to issue a binding decision.” Stephen B. Goldberg et al., Dispute Resolution: Negotiation, Mediation, and Other Processes 199 (2d ed. 1992).
n28. See generally Barlow F. Christensen, Private Justice: California’s General Reference Procedure, 1982 Am. B. Found. Res. J. 79 (describing California’s “rent a judge” procedure).
n29. Love, Top Ten Reasons, supra note 8, at 943; see also id. at 944 (“In the corporate world, phalanges of consultants assist in promoting creative problem-solving and building teams capable of successful collaboration. Similarly, the legal community needs a model from among the array of dispute resolution processes that will assist parties to evolve in their understandings, relationships, and arrangements, using the opportunity represented by conflict situations.”); Lela P. Love & Kimberlee K. Kovach, ADR: An Eclectic Array of Processes, Rather Than One Eclectic Process, 2000 J. Disp. Resol. 295, 306 (“Should the mediation process become engulfed by the adversarial paradigm now, disputants will be robbed of one of the richest opportunities to experience collaborative approaches to problem solving and dispute resolution.”); Stulberg, Piercing, supra note 6, at 988 (noting that the critics of the Riskin Grid “maintain that evaluative activity by a mediator distorts the distinctive attributes of the mediation process …”).
n30. See, e.g., Kovach & Love, Mapping Mediation, supra note 6, at 88 (identifying “voluntary self-determination by parties” as “the fundamental goal of mediation”); Kovach & Love, Oxymoron, supra note 7, at 32 (identifying “promoting self-determination of parties and helping the parties examine their real interest and develop mutually acceptable solutions” as the “primary objectives of mediation”). The purists rely in part on the Model Standards of Conduct for Mediators to support their contention that party autonomy is the primary goal of mediation. See, e.g., Kovach & Love, Oxymoron, supra note 7, at 31 (“The Model Standards of Conduct for Mediators, recently promulgated by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution, are at odds with ‘evaluative mediation.’ These standards say that the principle of self-determination is central to the mediation process and prohibit a mediator from providing professional advice.”); Love, Top Ten Reasons, supra note 8, at 940-41 (“The Model Standards of Conduct for Mediators highlight party self-determination as being the fundamental principle of mediation. The committee that created the Model Standards rejected mediation as an evaluative process.”).
n31. Alfini, Discussion, supra note 5, at 933-34 (quoting Lela Love); see also id. at 930 (quoting Donna Gebhart) (“I believe very strongly that when, or if, I evaluate the case, because they [i.e., parties] generally value what I say, it will affect their decision. They may be settling for something that they wouldn’t really be happy with.”); Kovach & Love, Mapping Mediation, supra note 6, at 100 (“The exact impact of actions and words is unknowable. If a precondition to giving an evaluation is determining that an evaluation will be ‘non-directive’ or will not interfere with self-determination, the safest and wisest course is to give no evaluation at all.”); Love, Top Ten Reasons, supra note 8, at 943 (noting, for example, that “the mediator’s opinion that one of the parties should buy a carpet to lessen the impact of sounds heard by a neighbor or that one of the parties does not have standing to bring a particular claim in court carries enormous weight.”). In short, the purists believe evaluative mediation undermines party autonomy because they overestimate mediators and underestimate parties. The purists claim to have a great deal of respect for parties embroiled in disputes. They claim that they perceive parties to “have the resources and creative capacity to resolve their own disputes better-and differently-than an arbitrator or a judge would,” see Kovach & Love, Oxymoron, supra note 7, at 32, yet they believe these parties will wilt in the face of a mediator’s expression of her opinion.
n32. See, e.g., Kovach & Love, Mapping Mediation, supra note 6, at 99 (“If the neutral assumes an evaluative role or orientation, the parties’ focus during the process shifts towards influencing the neutral decision-maker and away from crafting outcomes for themselves.”).
n33. See, e.g., id. at 100 (“Evaluation inhibits or eliminates party participation when it undermines one party’s negotiation position and, conversely, locks another party into a particular posture.”).
n34. See, e.g., id. at 102 (“If the mediator ultimately provides an evaluation, the mediator can expect to elicit only information like that shared in an adversarial process, especially if the parties are sophisticated. Accordingly, the evaluative mediator is handicapped in building an information base upon which more optimal, ‘win-win’ solutions might develop.”).
n35. See, e.g., id. at 103 (“An evaluative orientation on the part of the neutral tends to replicate the adversarial process and place the parties in an adversarial mode. The resulting defensive and offensive postures of the parties inhibit collaboration and creativity.”).
n36. Kovach & Love, Mapping Mediation, supra note 6, at 99; see also id. at 102-03 (arguing that mediators “must embrace a facilitative orientation to assist the parties in generating a truly self-determined outcome”).