Wisely Choosing a Mediator: Process Skills, Expertise, and More on Style and Approach

I want to continue my discussion of how best to choose a mediator.  I started the discussion here.  This posting will focus on a few more factors to consider.  

Mediator's Process Skills and Expertise

 Mediation skills do not come naturally to any of us.  Some people call mediation an art.  Some people call it a craft.  Mediators acquire their skills through hard work and hands-on experience.  Good mediators spend their spare time reading books about interest-based negotiation, mediation and conflict resolution.  We do pro bonowork to gain additional experience early in our mediation careers when no one will hire us.  So don’t be afraid to ask how many mediations the mediator has done and the nature of the disputes she has mediated.  You might even ask about her settlement rate.  But you should “avoid at any cost [a mediator] whose only goal is to achieve an agreement.” And “[b]e wary of a mediator who overstates the advantages of mediation.”

            Mediators learn listening, paraphrasing, reframing and astute questioning skills.  Our questions can be probing, but as non-threatening as possible.  Mediators learn techniques to facilitate communication between the parties.  We develop a firm understanding of the stages of mediation, but also demonstrate flexibility in handling the mediation agenda.  Mediators can explain the process clearly and effectively to the parties. 

            Mediators gain sensitivity to the needs of parties for equality, respect, security, face and safety.  We learn to spot and deal with high conflict personalities.  We understand the psychological barriers to negotiation.  And the really good mediators handle emotional expressions skillfully without cutting them off prematurely.  We know if, when and how to engage in joint sessions and private caucus with parties.  We know the rules of confidentiality.  We also know and adhere to the aspirational or ethical guidelines that apply to our practices and we practice consistently with the most rigorous set of ethical rules. 

Mediator's Legal and Substantive Experience

Some people believe that only attorney-mediators or retired judges serving as mediators should mediate litigation-related disputes.  These comments begin to frame one of the debates about the qualities of the most effective mediators.  Many parties assume that the mediator should have substantive expertise, with the ability to do very rigorous case evaluations or legal reality testing.  They argue that these mediators possess intimate experience with juries, know the judges in which the dispute is pending, and have personal knowledge of the legal issues and recent verdicts that may affect a party’s negotiating leverage.   Judges and well-respected lawyers may also provide the high status or authority parties seek.

If you seek this sort of expertise, then you are looking for a mediator who possesses great credibility and reliable analytical and evaluation skills.  You will probably want to ask the mediator what type of legal practice he or she has and how many years of experience the attorney has in that practice area.  How much trial experience does the attorney-mediator have?   How many mediations in the relevant subject-matter area has she done?  When the judge was on the bench, what was the nature of the caseload he handled?  Does the judge have a disposition and personality that is appropriate for the mediation context? Can he successfully shift from an adjudicator’s behavior to a mediator’s behavior?

Similarly, if the dispute involves a highly specialized or technical nature – like construction, environment, securities, computer technology, child custody, tax, or insurance coverage -- you may want to hire an engineer-mediator, biologist-mediator, broker-mediator, computer scientist-mediator, therapist-mediator, accountant-mediator, or claims manager-mediator.  You would ask that prospective mediator similar questions about his or her subject-matter expertise.   

One writer suggests that lawyers choose other lawyers and retired judges as mediators simply because it is their way of adapting an otherwise unfamiliar process to “look like something that is more familiar to them.”  Another commentator says: “Many advocates, especially lawyers, insist that subject-matter expertise is not only important but imperative in the mediation of their disputes.  This does not, however, explain why retired judges, who normally possess no such expertise are used by lawyers more often than other [attorney-mediators].”  However, if legal expertise were enough to carry the day in mediation, then the Microsoft mediation -- conducted by well-respected Judge Richard Posner, Chief Judge of the Seventh Circuit Court of Appeals -- should have been a great success.  Instead, that mediation is a textbook example of how the failure to master the process skills and apply a well-developed body of mediation and negotiation theory led to impasse on more than one occasion and the rejection of the deal by state attorney generals whom Posner had excluded from the process.

In jurisdictions, like Virginia, that prohibit a mediator from providing legal advice, allow the mediator to provide legal information only in highly constrained circumstances, and limit evaluations to three situations, the legal experience of the mediator is potentially irrelevant, a trap for the ethically careless mediator, and a risk to party self-determination.  The mediator, unlike an arbitrator, is not deciding the matter.  And real risks come with this highly evaluative style.  I will deal with that topic in a future article.   Another writer says: “An aggressive [presumably lawyerly] questioning style and a tendency to focus on fault and historical fact often limits a lawyer’s creative problem-solving ability and can aggravate positional behavior.”

Most mediators, including myself, will tell you that having good people skills, process expertise, and other qualities are far more important than knowledge of a particular area of law.  Even the author quoted above concedes:  “Mediation can also be successful even if a mediator is not well versed in the subject matter of a case.  In fact, a mediator who does not have subject-matter expertise but who offers an open mind could be more effective….A mediator who lacks subject matter expertise [] might provide the parties with a read on how a jury member—who most likely will not have subject matter expertise – would react to each party’s position.”  Many experts in the field, including myself, believe that non-lawyers bring backgrounds, skills and professional experience that may help the parties see the dispute in a new light.  Non-lawyers also may have better skills at handling the inter-personal relationship issues existing in the dispute and the emotions fueling the dispute.

As Hal Abramson says in his new book: “Just because someone is trained as an attorney or judge does not mean the person is qualified to serve as a problem-solving mediator.  A former judge, for instance, can successfully advance settlements by bringing to bear her vast experience in evaluating and deciding cases.  But, only a person formally trained in problem-solving mediation knows the nuanced structure of the mediation process and the refined techniques of mediators.”    But a short time later, Abramson concedes: “You are better off with a mediator who has some substantive understanding of the dispute.  However, you should unambiguously instruct the mediator to not give any substantive opinions, unless both sides specifically request the mediator to do so.”   He believes a mediator with some substantive knowledge can perhaps “hit the ground running,” better understand what is really at stake, and can more credibly communicate with the parties and their lawyers.  But Abramson cautions that a knowledgeable attorney-mediator may have extreme difficulty hiding his opinions and so may exhibit conduct in the mediation that undermines his neutrality or the parties’ perception of his neutrality.

If I were looking for a mediator, I would find someone with substantial process knowledge and skill, who had solid training and extensive hands-on experience before I would hire a less experienced attorney-mediator or retired judge-mediator.  In a perfect world, the mediator would have significant process and substantive expertise, and would know when to leave the substantive expertise out of the mediation.  This discussion should again highlight how selection of the mediator must consider the specific facts and circumstances of a particular dispute.

Mediator's Style or Approach

            In an earlier posting found here, I discussed the different mediator styles or approaches.  I won’t repeat that discussion here.  However, Woody Mosten has yet another tool for considering a mediator’s style or approach – the Mediator’s Abacus.  Envision a 12-wire abacus.  The “x’s” represent beads on the abacus wires indicating how a particular mediator might characterize himself or herself on the indicated approaches to mediation.  Thus, a lawyer-mediator is more likely to focus on the facts and law of the dispute rather than on the therapeutic, psychological, or emotions aspects of the dispute.  He may co-mediate about as often as he conducts solo mediations.  She will have a brief intake process with little documentation.  He may advise the parties to consult with lawyers as often as they like during the process, and he may ask them to have an attorney review any draft agreement before they sign it.  And, so on. 

Therapeutic_________________________________x_______Just facts and law

Co-Mediator__________________x_____________________Sole mediator

No intake process_________x__________________________Lengthy intake process

No intake documentation___x__________________________Lengthy documentation

No consulting lawyers________________________x_______Lawyers required

No lawyers at sessions________________x_______________Lawyers present

No solutions suggested____x___________________________Solutions recommended

Memorandum not binding___________________________x__Binding agreements

Multiple short meetings____________x___________________Long single sessions

Voluntary Participation____x___________________________Mandetory/court-ordered

Caucus_________________________________________x___All joint sessions

            Again, the style or approach of the mediator is an especially important factor to consider when choosing a mediator. 

This article first appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm.

Wisely Choosing a Mediator: Factors to Consider

Most states do not license or certify mediators.  They do not require a minimum level of training, continuing education, background checks, or character and fitness reviews.  In most states, a person who has lost his or her professional license in one area can nonetheless (and easily) open shop as a mediator.  Most states do not have standards of ethics that apply to all mediators and no grievance procedure allowing a client who believes something has gone terribly wrong in the mediation to report the wrongdoing.  Most states do not have the authority to sanction or otherwise prevent the activities of rogue mediators.

A few states have standards of ethics and some entry barriers to the profession consisting primarily of minimum training requirements.  In Missouri, a person can become a “Rule 17 qualified” mediator with less time spent in training than he or she spent watching TV the same week.  But even these ethics rules and modest training requirements typically only apply to mediators who seek to be listed on mediator rosters in court-connected mediation programs. 

In other words, just about anyone can hang up a shingle advertising his or her ability to conduct private mediations.   For lawyers and clients and other mediation parties, this information should tell you that the “buyer [must] beware.”  You need to take the time to choose your mediator wisely and with care.  Mediators vary greatly in skill, training, experience, and temperament.  Parties choosing a mediator must approach the task on a case-by-case basis, considering the facts, emotions, relationships, and law of the dispute as they may affect the attributes you need in mediator.

A good mediator can enhance the likelihood the parties will reach agreement.  A bad mediator will impede the settlement process and may undermine the parties’ relationship, as well as their confidence in the mediation process as a means for resolving future disputes.  Bad mediators will cost the parties additional time and money. 

Several years ago, I read all (yes, all) the advisory ethics opinions and grievance filings involving mediators issued by the ethics panels in Florida.  It brought home to me that a lot of sloppy mediation occurs that affects the core values of mediation: impartiality of the mediator, confidentiality of mediation communications, and party self-determination.

Factors to Consider in Choosing a Mediator

The Judicial Council of Alaska developed an easily accessed and well-informed guide for choosing a mediator.   It describes (1) the qualifications a mediator needs; (2) what makes a mediator competent; (3) the five steps it recommends in choosing a mediator and (4) additional resources.  

The Mediation Council of Illinois also developed a set of ten interview questions parties can pose to prospective mediators.  The questions ask about the mediator’s training -- both quantity and quality, whether he or she has had  any hands on mentoring, supervision or internship training, whether the mediator continues to “sharpen the saw” by attending continuing education programs and mediation-related conferences, and whether she consults regularly with other, more experienced mediators.  The questions then turn to the mediator’s level of experience:  How many mediations has the mediator done, overall and in the particular area of practice that relates to the dispute?   What percentage of the mediator’s professional life is devoted to mediation?  

It then turns to the mediator’s style or approach, which I discussed here.  Next, the interview considers the honesty, integrity and professionalism of the mediator by asking about any ethics complaints filed against him or her, whether the mediator belongs to mediation-related organizations like the Association for Conflict Resolution, the Association of Attorney-Mediators, or state mediator organizations, and whether the mediator provides pro bono mediation services as a community service.   It asks for roster listings, which reflect some measure of confidence expressed by third-parties in the mediator.  It also asks whether the mediator carries liability insurance for his or her mediation practice.

These two easily accessed tools provide a place to start your investigation.  And good mediators will not hesitate to respond to any question about his or her professional background.  But I recommend an even more thorough analysis.

Personal Qualities of a Good Mediator

My last posting, here, called Qualities of a Good Mediator and the Lessons New Mediators Learn, surveyed the thoughts of a number of conflict resolution experts about the personal qualities of effective mediators.  

Mediator's Availability and Affordability

            

Often, the well-respected mediators are booked months in advance.  Accordingly, the parties must determine if they can endure the wait.  If not, a rising star with a more open calendar will be the better choice.

Parties often pursue mediation because it tends to be less costly than litigation.   Parties can choose from no-cost or low-cost community mediation projects.  Or, they may engage private mediators who will charge $100 to $300 per hour.  Some mediators charge $1,500 to $3,000 per day, or charge according to the number of parties, the complexity of the case, or the money demand made in the complaint. They may charge cancellation fees.  They may charge pre-mediation fees related to intake or background phone calls or the review of papers or briefs.   

Mediators should not hesitate to discuss fee issues.  Most ethics codes, whether aspirational or mandatory, require the mediator to disclose all fees and costs in the mediation agreement, a retention letter, or the mediator’s opening statement. Most ethics codes also preclude contingency fees and referral fees because of their potential affect on mediator impartiality.  These codes may also instruct mediators to return any unused fees.

Mediator's Certification or Roster Status

Most courts will not allow mediators to mediate cases pending in the courts without some assurance the mediators meet basic training requirements.  Whether a mediator is certified, qualified, or rostered may offer some assurance that he or she has at least some minimal level of training.  

In Virginia, where I now live, entry level mediators (essentially small claims mediators) must have 20 hours of training, including two hours of ethics training.  They must also take a four-hour course on the Virginia judicial system.  Persons wanting to do more complex court-connected civil mediations need an additional 20 hours of training.  Family dispute mediators must have 32 additional hours of training in family systems, the social, emotional and psychological aspects of custody and visitation issues, an understanding of the grounds for divorce, parenting issues, support issues, property issues, debt and bankruptcy issues, tax issues, and the use of experts in mediation.  They must also take an 8-hour course giving them some expertise in screening for and addressing domestic abuse.  Virginiare-certifies mediators every two years after they show additional experience and training.  The court also requires observations and co-mediations with a certified mentor as part of the training program.  The requirements are summarized here.

In contrast, Missouri Supreme Court Rule 17.04 requires only 16 hours of basic training for mediators.  By comparison, I now have over 3000 hours of training.

When choosing a mediator, you should ask for the mediator’s list of training programs.  Most well-organized mediators keep an updated list of all the training programs they have attended.  You should then attempt to assess the quality of the trainers.   Training quality depends on the hands-on experiences offered the trainees and the quality of the feedback provided by the trainers.  Hal Abramson says:  “Information on the quality of training programs can be difficult to acquire by the newcomer although the information is widely known to dispute resolution professionals.  You should ask around.”  The Association for Conflict Resolution lists approved family mediation training programs by provider and state.  To be listed, the program must provide fifteen training outcomes.

You may also want to evaluate the quality of the mediator’s other professional training as a lawyer, therapist or accountant, for instance.  Does he or she have any specialized degrees.

And finally, does the mediator, in turn, train other mediators?  Is he or she well-recognized in the field for his or her training work?

I'll discuss additional factors in the selection process in my next posting. 

This article originally appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm (footnotes in original are omitted in this posting). 

Qualities of a Good Mediator

Several years ago, the University of Missouri-Columbia School of Law held its annual training for new mediators.   I served as a role-play coach and evaluator.  Those of us who have been through that training call it the “baby” mediation training.  Its principle purpose, in my mind, is to show the participants how little they know, even after they complete the training, and the significant challenges a mediator faces.  Mediation is not for sissies.

After three days of training, many of this year’s participants began to realize that mediation is hard work.  Several trainees realized that good mediation requires rough and tough litigators to move out of their comfort zones.  Good mediation requires a different set of skills from those used regularly by trial lawyers.

Missouri Supreme Court Rule 17 requires new mediators to have at least sixteen hours of “appropriate” training.  These requirements are quite modest.  Virginia, my new home, requires twenty hours of training.  New Virginia mediators must also observe two mediated cases and co-mediate three cases for at least a total of five hours.  The good mediators I know have hundreds of hours of training.  One of the best mediators in St. Louishas over 500 hours of training.  

Good mediators attend the annual conferences sponsored by the Association for Conflict Resolution and the ABA Section on Dispute Resolution, where mediators more deeply explore the theories underlying approaches to mediation, share experiences with other mediators, and buy the latest books on mediation and conflict theory.  Good mediators also belong to local professional organizations like the Association of Missouri Mediators, the Association of Attorney-Mediators, or the Virginia Mediation Network.  

In The Making of a Mediator: Developing Artistry in Practice, Lang and Taylor identify the following hallmarks of artistry in a mediation practice:  (1) Attending to detail, staying responsive in the moment, and observing nuances in the parties’ behavior, tone, and voice; (2) remaining curious and open to new perspectives on the stories the parties tell; (3) exploring all options and not being bound by limiting assumptions or simplistic characterizations of one party about himself or about the other party; (4) developing and testing formulations of the conflict and abandoning any formulations that are not accurate or stall the process; (5)  showing resilience and responding to the events and circumstances of the moment without losing sight of the goals of the process; and (6) showing patience, vision, and a clear sense of direction.  Id. at 24-36.   

In his book, Mediation Career Guide – A Strategic Approach to Building a Successful Practice, Woody Mosten identifies the roles a mediator plays as including: host, teacher, emotional counselor, referee, facilitator, idea generator, reality tester, negotiation coach, conflict manager and recording secretary.  Id. at 35.   He says that mediators are good listeners, effective communicators, patient, tolerant, neutral, empathetic, persistent, trustworthy, flexible, creative, positive, optimistic, and they can handle conflict.  Id. at 23. 

Walter Maggiola, in Techniques of Mediation, provides a list of the characteristics good mediators possess:

º           The patience of Job,

º           The sincerity and bulldog characteristics of the English and the wit of the Irish,

º           The physical endurance of the marathon runner,

º           The broken-field dodging abilities of a halfback,

º           The guile of Machiavelli,

º           The personality-probing skills of a good psychiatrist,

º           The confidence-retaining characteristics of a mute,

º           The hide of a rhinoceros,

º           The wisdom of Solomon,

º           Demonstrated integrity and impartiality,

º           Fundamental belief in human values and potential, tempered by the ability to assess personal    weaknesses as well as strengths,

º           Hard-nosed ability to analyze what is available in contrast to what might be desirable, [and]

º           Sufficient personal drive and ego, qualified by the willingness to be self-effacing.

Quoted in Mediation Career Guide at 31. 

So my advice to the latest crop of baby mediators is this:  Get more training.   Read the books on the list of recommended readings in your training manual, then order more books on mediation and negotiation from the leading provider – Jossey-Bass Publishers.   Read the articles at www.mediate.com.  Look for any opportunity to talk with more experienced mediators.  Look for anyopportunity to observe an experienced mediator.  Join the leading professional organizations so you receive their publications.  Stay humble.  I guarantee that the good mediators feel incompetent most of the time, but they are so drawn to the promise of mediation that they will do whatever it takes to assemble the skills required to feel less incompetent.   Congratulations.  And I wish you the best.

What do you think are the qualities of a great mediator?  I'd like to hear your comments. 

This article first appeared in ST. LOUIS LAWYER, August 7, 2002, at 10A (footnotes in original are omitted in this posting).

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 Mediate.com at http://mediate.com/artilce/young15.cfm Footnotes in the original are omitted in this posting). 

The Who of Mediation: A New Look at Mediator “Styles”

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.  SeeLeonard 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 Citylaw 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. 

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 Mediation    

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 -- 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 Mediation

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 seeLeonard 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).

Transformative Mediation

The style discussion got even more complicated when, in 1994, R. Baruch Bush and Joseph Folger published a book entitled The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (Jossey-Bass 1994).  Bush and Folger introduced the concept of yet another style of mediation known as the transformative style.  The focus of mediators using this style is on relationship-building.  A mediator using this style views the primary goal of the process as allowing parties to experience moral growth.  Settlement itself is not the principle goal.  The mediator seeks to generate mutual respect between the parties and to get each party to truly appreciate the interests and viewpoints of the other party.  These mediators see conflict as an opportunity to transform people from fearful, defensive, and self-centered beings to confident, responsive, and caring beings.  These mediators hope to transform the parties into relatively self-sufficient problem-solvers so they can resolve future controversies that arise between them.  The mediator consciously avoids judgments about the parties’ views or decisions, including whether they are “fair.”  These mediators cede control of the process to the parties, allowing the parties to make process-related decisions, including the need for any ground rules.  They also allow for expressions of emotions.  These mediators care very much about the empowerment and recognition of the parties.  Noll suggests that the transformative mediation process is not another style, but an orientation to outcome, joined by two other orientations: the problem-solving orientation and the narrative orientation.  Noll, supra at 100-106.

The problem-solving orientation focuses on solving problems (duh) and reaching a settlement of the dispute.  This orientation sees conflict as a clash of interests and needs, as generally described by Roger Fisher, William Ury and Bruce Patton in Getting to Yes (2d ed., Penguin 1991).  The focus of this orientation is to search for common interests and to look for ways to satisfy the parties’ interests and needs in a collaborative way that “expands the pie,” if possible, or looks for value creating trades.  Its opposite approach is the distributive-adversarial-positional form of negotiation.   Noll suggests that this overall orientation is then further subdivided into the bargaining mode and the therapeutic mode based on an analysis by Susan Silbey and Sally Merry, Mediator Settlement Strategies, 8 Law and Policy J. 7, 12-19 (1986).    Under the bargaining mode, the mediator claims substantive expertise in law and adjudication.  He or she may achieve settlement by criticizing the litigation system for its cost, inefficiency and unpredictability.  Mediators using the therapeutic mode, in contrast, claim substantive expertise in managing interpersonal relationships.  The therapeutic mediator “focuses on emotional concerns, criticizing the legal system for its tendency to ignore emotions and destroy relationships.”  Noll, supra at 101. 

Narrative Mediation

The narrative mediation orientation finds its description in John Winslade & Gerald Monk’s,  Narrative Mediation: A New Approach to Conflict Resolution(Jossey-Bass 2000).   These New Zealand mediators suggest that reality is constructed from people’s conversations or discourses with each other. Id. at 41-44; Noll, supra at 104.  Conflict, according to this orientation, is normal and expected.  The mediator helps the parties construct a new narrative about the conflict that reframes the parties’ perception about it so they can solve the dispute collaboratively.  Id.   The orientation assumes that conflict reflects culturally created perceptions of unmet needs. “Problems are seen as constructed within a pattern of relationships, and social context is the key to understanding self and identity.”  Noll, supra at 104.  The mediator helps the parties change the context of the dispute to a new one in which new choices become possible for the parties.  The mediator searches for an outcome defined as a new reality without the conflict-laden story.  Id.at 106.

Trashers, Bashers, and Hashers

Even before Riskin developed the first grid, another scholar put mediators into three categories: the trashers, the bashers and the hashers.  James Alfini, Trashing, Bashing and Hashing it Out:  Is this the End of “Good Mediation”?, 19 Fla. St. U. L. Rev. 47, 66-73 (1991).   Trasher mediators, often experienced trial lawyers, “spend much of the time ‘tearing apart’ the cases of the parties.” Id.at 66.   The technique discourages direct party negotiations.  After this trasher process, the mediator suggests to the parties more “realistic” settlement options.

Basher mediators, according to Alfini, focus on the opening settlement offers the parties bring to the mediation.  The basher then attempts to move the parties to a number somewhere in between the original offers.  Most bashers are retired judges “who draw on their judicial experience and use the prestige of their past judicial service to bash out an agreement.”  Id.at 69.   Trashers and bashers will likely keep the parties in mediation until they reach a settlement.

The hashers, in contrast, encourage party-to-party negotiation.  One described himself using these terms: “[f]acilitator, orchestrator, referee, sounding board, scapegoat.”  Id.at 71.  The hasher is less likely to keep the parties at the table if one of them expresses a desire to leave.  Id. at 72.  “Flexibility is the hallmark of the hasher style of mediation…they are willing to employ trasher and basher methodologies if they believe it to be appropriate in a particular case.”  Id. at 73.     

Perplexed?  You betcha.  Especially if you, as a mediator, saw your interventions as far more complex and variable.

In my next posting, I'll explore the new grid developed by Riskin that better conceptualizes the role of a mediator. 

This article first appeared in the St. Louis Lawyer, Oct. 2004, and has been reprinted in The Insurance Receiver, Spring 2005, at 11 and at Mediate.com at http://mediate.com/artilce/young15.cfm.

Solo Lawyering as an Option in this Recessionary Market

Solo practice, a no doubt terrifying option for most new graduates, still remains an option for lawyers.  

Many resources exists to help new solos.  An article published recently, lists a few of them here. I am also following several blogs focused on solo practice that you can easily access through this blog site.  A much longer list of relevant blogs appears here. 

Recently, we offered students a one day workshop on going solo.  It covered:

• Assessing the Risks and Rewards of Being a Lawyerpreneur 
• Financing a Solo Practice 
• Trust Accounts 
• Income Tax Implications of Solo Practice 
• Legal Research Resources 
• Law Office Technology 
• Ethics 
• Marketing a Solo Practice, and 
• Tips from an Alumna

For a free scanned copy of these materials, send me an email at pyoung@asl.edu.  

Interestingly, the alumna who offered advice to students told me she had turned down a job in the local Commonwealth Attorney's office because she was making more money in private solo practice.  Yes, it took her a few months to win the trust and confidence of the local judges and bar, but having done that, she now had a reliable stream of referrals, many of which were court-appointed criminal defense cases.    

The ABA's Solo, Small Firm, and General Practice Division, found here, provides many resources for new and existing solo practitioners.  The group offers monthly teleconferences and webinars on substantive topics, as well as on law office management issues.  It publishes a well-known book: How to Start & Build a Law Practice by Jay Foonberg, available here. 

The ABA President, Laurel Bellows, recently described solos as flexible and responsive making it easier for them to "thrive" in the recessionary economy.  In the same issue of the ABA Journal, Deborah L. Cohen identified mentors as the key to the success for fledgling solos.  They can serve as legal advisers, business strategists, courtroom guides, ethics counselors, and supportive listeners.  

Finally, in preparation for my portion of the presentation to students, I surveyed our library collection of books relating to solo practice and law firm marketing.  Even at our small library, I found over 20 books on the topics.  The library also had a multi-volume CD set of presentations and advice for solos, including one on how to develop a business plan. 

With all the changes the legal profession faces in this age of the New Normal, even experienced lawyers are looking at the solo option.  Yes, it is scary, but the upside potential is great!  Based on their FB postings, I see so many of our grads pursuing successful solo practices.  I am very proud of their courage, service to the community, and ability to support themselves and the ones they love.  

Nine-Month Post-Grad Employment Rates Don't Tell the Whole Story

Recently, Above the Law decided to develop its own law school ranking system based on employment rates nine months after graduation.  For the list of top ten schools look here.  I especially like the first comment to that story.  This list clearly fails to recognize that most students will not have the GPA and LSAT scores to get admitted to the law schools Above the Law ranks at the top of its list.  Moreover, the list covers only the top 50 schools, leaving about 150 ABA-accredited schools out of the analysis.  See here.

My last post here discussed how the reported employment numbers could mislead a prospective student.  This new ranking system reflects only the last category of numbers I discussed:  full-time, long-term, bar-required employment within nine months after graduation.

I am not the only law school professor frustrated with the coverage these numbers get.  Brian Leiter of the University of Chicago has lodged his concerns here and refers to a post by Northwestern Dean Dan Rodriguez here explaining a broader perspective on the topic.  He discusses the other categories of employment that may matter to graduating law students, especially the J.D.-preferred category.

This past week Debra Cassens Weiss also reported data showing that employment rates nine months after graduation don't tell the whole story.  Her article appears here.  She describes the empirical research conducted by Prof. D. Benjamin Barros, Associate Dean for Faculty Research and Development at Widener Law School.

His research shows that  80.4 percent of Widener's 2010 grads had jobs requiring bar passage, up from the nine month post-grad percentage of 47.5.  For the class of 2011, 74.1 percent of grads had jobs requiring bar passage, up from the nine month post-grad percentage of 46.8.

Barros says: "It is not reasonable . . . to treat the nine-month numbers as the final word on employment for a particular class of graduates."  Barros recognizes the role the bar exam may play in delaying job offers.  In addition, the bad economy likely makes job hunting more difficult.

He concludes: "[I]t is a mistake to be unduly fixated on initial job outcomes in evaluating any higher educational program."