Friday, May 31, 2013

The Who of Mediation: Mediator “Styles” and Riskin's New Grid System

A decade after his first “grid” article, described in my last posting here, Professor Len Riskin looked again at the question of mediator style, orientation, or strategies.  Perhaps influenced by his 20-year experience in mediation, or by his understanding of “living in the moment” derived from his mindfulness meditation practice, or perhaps because of the increasingly shriller debate about which style was “best,” he took a more nuanced and fresh look at the original grid.  See Leonard Riskin, Who Decides What? Rethinking the Grid of Mediator Orientations, 9 No.2 Disp. Resol. J. 22 (2003).  

He now suggests, I think, that we mediators should be gentler with each other.  Instead of labeling ourselves and each other (bad, bad evaluator or flakey, inefficient facilitator, or weird transformative mediator), mediators can ask instead what the parties need in the moment.  Mediators can also listen better when the parties ask us for what they need in the moment.  He suggests that we consider the interventions or actions that mediators take during a mediation as if they were a series of frames in a motion picture.  In each frame, what is the mediator doing and why?  In that moment, what approach is the mediator taking?   What strategy or technique is the mediator employing?   What orientation is the mediator exhibiting?  In the moment, is that choice effective?  If not, what happens in the next moment? If so, what opportunities did the intervention create in the next moment?   The mediation process gains through this analysis a dynamism both in practice and theory that we may have missed before. 

The new Riskin system asks whether the mediator is using a strategy, style, technique, approach, or orientation – in that moment – at her own direction (mediator influence) or at the invitation of the parties (party/lawyer influence).   During any mediation, the answer to that question will depend on the needs of the moment.  Even the most evaluative mediator will have moments of highly facilitative interventions.  Even that mediator will have moments when he or she will focus on emotion or the need for the parties to empathize with each other, or truly understand each other’s perspectives.

As Riskin explains, by example: “At [one point on the grid evaluating problem definition], the mediation is focused on a narrow problem and nearly all of the influence to develop the problem definition has come from the mediator.  At [a second point on the grid], the mediation has a broader scope, and although the mediator’s influence in determining that problem definition still predominates, the other participants also have experienced some influence.  At [a third point on the grid], the participants have influenced the development of a broader problem definition.”  Id. at 25. 

Riskin further developed his new grid system over a series of articles: <>.  The field now identifies the two approaches as directive (mediator influence) and elicitive (party or lawyer influence). 

Lawyers, mediators, or scholars could develop additional grids relating to each meta-process in the mediation:

  • Will the mediator request pre-mediation submissions (yes, because she finds them useful, therefore disclosing a directive mediator influence); 
  • Will she focus only on the legal positions of the parties and not consider underlying interests (no, unless the lawyers explain that they want something more akin to early neutral evaluation, therefore disclosing lawyer influence); 
  • Will she use caucus (no, because she has decided that the best work occurs when the parties are together, therefore disclosing directive mediator influence); 
  • Will she make a mediator’s proposal when the parties cannot close the gap (yes, but only as a last resort and only if the parties request it, therefore disclosing shared mediator and party influence)?    
Lawyers and clients could also use these grids, Riskin suggests, to determine pre-dispositions toward influence – theirs and the potential mediator.   This knowledge would help lawyers choose the best mediator for the particular dispute involving particular parties.  Id. at  25.   They would know in advance, for instance, that they wanted an evaluation of the legal case. They could then choose a mediator willing to provide that evaluation.

Riskin’s new grids (one no longer suffices) focus on behaviors in the moment and over time rather than on labels that apply to the mediator throughout the mediation interaction.   Yet, again, Riskin has enlivened the debate over mediator styles by providing these new analytical tools.   Lawyers and clients can use them to participate in mediation at a much more sophisticated level and with more control over the process -- if they wish.

This article first appeared in the St. Louis Lawyer, Oct. 2004, and was reprinted in The Insurance Receiver, Spring 2005, at 11 and at at Footnotes in the original are omitted in this posting). 

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