If two rocket scientists don’t correctly understand each other’s jargon, things could blow up real fast. If laypeople don’t understand the scientists, however, no problem.
It’s quite different in the dispute resolution field. Parties are supposed to actively participate in mediation (and other dispute resolution processes to some extent), and thus they need to understand what experts are saying. Lawyers representing clients in mediation especially need to understand the process to fulfill their ethical responsibility of competence. And certainly mediators should understand basic concepts of mediation.
Houston, we have a problem in the dispute resolution field. We use basic terms that are oversimplified and confusing – terms that even dispute resolution experts don’t properly understand.
Alas, as Andrea Schneider all-too-accurately observed, our labels suck. And this is from a bunch of so-called communication experts.
Baffling Mediation Models
Let’s do a thought experiment. The famous “Riskin Grid” includes seventeen elements in what are used as probably the best-known set of mediation models. How many of these elements can you state correctly? How many academics specializing in dispute resolution do you think could correctly state at least half of the elements? (My guess is a pretty small proportion.) What about experienced mediators? (My guess is even less.)
When I taught a lawyering course, I covered the Riskin Grid. I warned my law students that it probably would be on the exam and that to get full credit, they would need to identify and apply elements of the grid in their answers. They were smart people who were highly motivated to get good grades, so most of them got it right, right? (You’ve got to be kidding.)
Dispute resolution academics, mediators, and law students who don’t know the formal definitions of facilitative and evaluative mediation nonetheless probably have some ideas about their meaning. How do they use these terms? My guess is that they use sloppy and widely differing terms that don’t track the formal definitions. And yet people in the dispute resolution field casually use these terms as if people clearly understand the terms the same way. By contrast, normal people use lots of non-standard adjectives like strong, active, effective, or pragmatic.
If parties and lawyers were told only that a mediation would be facilitative or evaluative, they wouldn’t have a clear understanding and they would need to know a lot more about what to expect in mediation. They don’t understand the theoretical meanings, in part, because they aren’t consistent with commonly-understood language.
In real life, mediation is much more complicated than suggested by the system of mediation models, including but not limited to facilitative and evaluative mediation. Many models focus almost exclusively on handling the ultimate issues in dispute during mediation sessions, largely ignoring important pre-session preparation activities. The models also do not address many other aspects of mediation, including contextual and cultural variables that have major effects on how people think and act in mediation.
More fundamentally, the facilitative and evaluative models embody very problematic assumptions. They assume that each model is a distinct bundle of interventions that are used together, and that interventions clearly fall into one model or the other.
But that just ain’t so.
Facilitative mediation consists of very different actions bundled into a single model: helping parties evaluate, develop, and exchange proposals; asking about strengths and weaknesses of each side’s case; asking about consequences of settling and likely court outcomes; helping parties understand their interests; and helping parties develop options that respond to their interests. Conversely, evaluative mediation is a bundled model consisting of assessing the strength and weaknesses of each side’s case; predicting impact of settling and court outcomes; urging parties to settle; and proposing settlements.
On reflection, it should be clear that these two models provide confusing characterizations of what mediators actually do. Mediators perform many different actions in response to the situations at different times in a case, and they often use interventions from both models.
Mediators who use some techniques identified with the evaluative model inevitably use some facilitative techniques. But would the use of any of the evaluative techniques make the whole process evaluative? In other words, is it impossible to be just a little bit evaluative (just like one can’t be a little bit pregnant)?
Not only that, arguments about what is or is not real or good mediation have spawned unhelpful ideological divisions in the field.
Befuddling Negotiation Language
Negotiation terminology isn’t any better. We use numerous ambiguous terms for essentially the same two basic theoretical models. One model is called distributive, competitive, adversarial, or positional negotiation. The other is called integrative, problem-solving, cooperative, or interest-based negotiation.
And traditional theory omits a very common model I found in a study, which I called ordinary legal negotiation, in which lawyers try to reach a reasonable agreement based on shared norms (typically the expected outcomes in court or normal agreements in similar cases). This contrasts with negotiation approaches seeking partisan advantage or mutual gains.
Don’t get me started about BATNAs, which can confuse even emeritus professors. BATNA refers to the best alternative course of action to negotiating an agreement, though many of us think of it as the expected value of the outcome of that action.
In litigation, the BATNA – the course of action – traditionally is considered going to trial. The expected judgment is the expected value of the court outcome.
For an extreme example illustrating the difference, consider that an alternative course of action in litigation could be taking out a contract on somebody who rejects an offer he shouldn’t refuse. The value of that course of action is how much the subject pays to continue breathing.
And What’s ADR, Anyway?
There’s no good answer. There is not even a generally-accepted term for the field. Traditionally, it has been “ADR” – alternative dispute resolution. Over time, people in the field didn’t want to identify it as simply not being litigation, and some people use other adjectives, such as “appropriate” or “assisted” dispute resolution. Some people generally prefer the unqualified term “dispute resolution.”
But even that term doesn’t really make sense because there is no essential characteristic of the field, especially a characteristic that other fields cannot claim as well. For example, not all dispute resolution processes involve neutral third parties, focus on parties’ interests, promote party self-determination, provide good processes, promise privacy or confidentiality, or are innovative.
(A)DR is just a mushrooming collection of disparate processes. It excludes litigation even though many “ADR” processes are inextricably intertwined with litigation.
The lack of consensus about the name and definition of the field reflects deeper conceptual problems for the field.
Dispute System Design as an Alternative to ADR
This is the first in a series of posts related to my article in the Cardozo Journal of Conflict Resolution, Real Mediation Systems to Help Parties and Mediators Achieve Their Goals.
A later post will present real mediation systems of real mediators. Most of these mediators are clinical faculty, who work at the intersection of theory and practice. The series also will include practical tools for instructors and practitioners to use these ideas in their teaching and practice.