12th Al Jazeera Forum: Session 4 - Changing Alliances in the Region

 

7/n An Analysis of UAE's Commercial Mediation Law, Federal Law No. 6 of 2021, Party Self-Determination, Part 3: Mediator Influence, Process Design, and Process Choices

Party self-determination in mediation has both substantive and procedural aspects.  In my last post, I discussed how the Qatar Mediation Law potentially impacted the parties' substantive self-determination and high-quality decision-making about the outcome.

Procedural Self-determination and Party Control of the Process

In this post, I look at party self-determination over the process design and process choices during the mediation.  To structure this discussion, I first describe another framework for analyzing the UAE Commercial Mediation Law.  

Many steps in the mediation process invite input from the parties or their lawyers.  But, the program design or the interventions of a mediator can undermine that procedural self-determination.

The following list provides some of the process decisions in which parties or their lawyers could exercise more decision-making authority and, thus, more control:

• Who may participate in the process and how many representatives may attend for each party?
• Who will be the mediator or mediators?
• How many mediators will participate?
• What will be the orientation of the mediator?
• Who decides whether to file pre-mediation submissions with the mediator? 
• How will the participants handle language differences?
• Should the mediation be in-person or online?
• If in-person, where should the parties hold the mediation? What country, city, or venue? 
• How should the room be arranged?  Consider table selection and orientation, seating arrangements, and amenities available.
• What options for food and beverage should exist?
• How long should each session last?  Will some parties need more frequent breaks? Will the mediation require multiple sessions over several days?
• How will the issues and interests be framed?
• Will the parties have freedom to express emotion, especially anger, anxiety, sadness, or aggression?
• How will the disclosure of information in the process be treated under rules of confidentiality?
• How will the option generation process proceed?  Can the mediator suggest options or make proposals?
• How will offers and counteroffers be conveyed? 
• Who influences the choice of objective criteria?
• Who influences which neutral fact- or neutral legal-evaluators participate in the process?
• Who decides whether and when to caucus and which party participates in the caucus first? 
• Who drafts the final settlement agreement?

As explained below, some mediators would cede a lot of control to the parties over many of these decisions as a matter of an elicitive orientation. On the other extreme, a highly directive mediator would make most of these process decisions for the parties.

Mediator "Styles": Riskin's First Grid

In 1994, Len Riskin, then the C.A. Leedy Professor of Law at the University of Missouri-Columbia and Director of its Center for the Study of Dispute Resolution, inadvertently started a great debate about what “style” of mediation was “best.” When he published the article entitled, Mediator Orientations, Strategies and Techniques, 12 Alternatives to the High Cost of Litigation 111 (1994), he described four styles of mediation based on how broadly the mediator defined the problem presented by the parties (and thus the depth of intervention the mediator was likely to take) and the role of the mediator -- either facilitative or evaluative. According to this analytical scheme, a mediator could be: 

• narrow/facilitative, 
• narrow/evaluative, 
• broad/facilitative, or 
• broad/evaluative. 

The two-dimensional grid based on this analysis supposedly predicts the strategies each type of mediator is likely to use, and, Riskin thought at the time, the amount of self-determination the parties would have in the process. See Leonard L. Riskin, Who Decides What? Rethinking the Grid of Mediator Orientations, 9 No. 2 Disp. Resol. Mag. 22 (2003). This analytical scheme came out of an invitation from a Kansas City, Missouri law firm whose partners hoped its lawyers would participate more effectively in mediations by, among other things, making more skillful choices about which mediator to use. Id. at 22. Unexpectedly, the Riskin grid -- as it quickly became known – began to polarize the mediation community. It led to the labeling of mediators. 

Problem Definition

On the problem definition dimension of the original grid, a mediator who defined the problem narrowly would consider and help the parties resolve only the litigation-related issues. If the mediator defined the problem increasingly more broadly, he or she might next consider business interests, then personal, professional or relationship interests, and finally community interests involved in the dispute.

Facilitative Style

The other dimension of the grid focused on the role of the mediator and identified two roles or styles of mediation: evaluative and facilitative. One can look at these two styles from several perspectives: their focus, goals, processes used, and outcome orientation. 

According to several authors, facilitative mediation -- the style of mediation most frequently taught to new mediators in the U.S. -- focuses on providing the parties consensus building process-skills. Mediators using this style assume that the parties are intelligent and capable and that they understand better than any mediator ever could the dispute and possible resolutions of it. Mediators using this style intend to enhance the participation of all parties involved in the mediation, generate party-to-party discussions, and reopen and improve channels of communication. They also use techniques designed to identify each party’s interest and needs underlying their hardened positions, help the parties evaluate unreasonable expectations, and help the parties identify solutions to the dispute through brainstorming and option generation techniques. 

Facilitative mediators generally show a preference for joint sessions rather than caucus and reserve caucus for times when the parties can not talk to each other face-to-face. The mediator remains responsible for the process, but not for the outcome.

Evaluative Style

Evaluative mediators are often defined as focusing on the substance of the dispute. They assume the parties need more help in assessing or predicting litigation outcomes and formulating solutions to the dispute. 

The techniques of evaluative mediators often include review of the underlying legal documents, assessment of the law or facts underlying the dispute, and active participation in the resolution of the dispute through case evaluation, the prediction of outcomes at trial, or other substance-oriented assistance. 

Often, these mediators use more caucuses, in which the mediator attempts to convince the parties to accept a recommended solution. They often apply pressure to settle. They typically control the expression of emotion as not being helpful or as actually hindering the process. 

The style looks a lot like shuttle diplomacy and makes the mediator more responsible for correctly translating for the other party the verbal, non-verbal, emotional, and psychological communication of the other side expressed during caucus. These mediators see themselves as “dealmakers” willingly deciding what is best or “fair” for the parties. 

One author suggests that most evaluative mediators are lawyers or retired judges who tend to “revert to their default adversarial mode, analyzing the legal merits of the case to move towards settlement.” He suggests this “legalized” style is more akin to early neutral evaluation or non-binding arbitration. Douglas Noll, Peacemaking: Practicing at the Intersection of Law and Human Conflict 91-92 (Cascadia 2003). 

Even these short descriptions show how quickly this debate becomes one of stereotypes. Less skillful mediators, some argue, used the more heavy-handed evaluative style. On the other hand, only touchy-feely people wearing Birkenstocks are truly facilitative. 

For a more comprehensive discussion of these styles see Leonard L. Riskin, Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed, 1 Harv. L. Rev. 7 (1996); Kimberlee Kovach & Lela Love, “Evaluative” Mediation is an Oxymoron, 14 Alternatives to High Cost of Litigation 31 (1996). Noll, supra at 86-89, 91-99; Charles Craver, Mediation: A Trial Lawyer’s Guide, 35 Trial 37 (June 1999). For a discussion other mediator styles, see here in my post called The Who of Mediation, Part 1: A New Look at Mediator "Styles."

The Evolved Riskin Grid of Mediator Orientation and Interventions

A decade after his first “grid” article, 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 effective, 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 grid 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 or 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.

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). 

Applying the Theory to Practice

As Riskin explains, by example: “At [point M], 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 [point PBL], 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 [point PB], the participants have influenced the development of a broader problem definition.” Id. at 25.

Thus, the grid allows a way to asses influence during the mediation process. For example:

• 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 elicited by the mediator); 
• 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. 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.

In my next post, I will analyze how the UAE Commercial Mediation Law affects party self-determination over process choices, keeping the Riskin revised grid in mind.

Also, this reminder:  The 2021 law has now been replaced by Federal Decree-Law No. 40/2023 On Mediation and Conciliation in Civil and Commercial Disputes, issued on September 28, 2023, and effective 90 days after its publication, which is some time in December 2023.  A copy of the English-language version is available here.