A Style Index for Mediators

Consortium for Appropriate Dispute Resolution (CADRE)

A Style Index for Mediators

by Jeffrey Krivis and Barbara McAdoo

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Prof. Leonard L. Riskin of the University of Missouri-Columbia School of Law has written extensively about mediators and the mediation field. Most recently his work has focused on developing ways to characterize the many different styles of mediators.

In 1994, Riskin explained in Alternatives the ideas used to develop this article's Mediator Classification Index. [See Riskin, Mediator Orientations, Strategies and Techniques, 12 Alternatives 111 (September 1994). Riskin elaborated on his classification system in Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed, 1 Harvard Negotiation L. Rev. 7 (1996).] His theory on mediator style focuses on (1) how mediators view their role, as "evaluative" or as "facilitative," and (2) how mediators define the problem, "narrow" or "broad." The result is a four-quadrant grid keyed to these two style focuses and containing areas pertaining to mediator styles: Evaluative Narrow, Evaluative Broad, Facilitative Narrow, and Facilitative Broad.

Based on Riskin's work, we have developed the self-scoring MCI. It is designed to assist mediators in understanding the particular approach or style that they tend to use during the mediation process.

Understanding style is crucial to improving mediator performance. It allows a mediator to select from a spectrum of techniques that might be available depending on the nature of the issues presented. It also makes it simple for the mediator to explain to the disputants why a particular approach might be used in resolving the dispute.

Although the MCI is still a work-in-progress and is not a standardized testing instrument, many are finding it to be a useful tool to create an awareness of the stylistic options available to mediators.

In developing the MCI, we first used expert panels in Minnesota and California to analyze the content validity of questions below. For example, did the questions measure what they were supposed to measure relative to factors used by Riskin in his original grid? After revisions, a 48-item MCI was made widely available and used throughout the country by hundreds of mediation trainees. Using a statistical package on a sample of 224 completed instruments, the scales were "purified" and reduced. Finally, after analyzing written and verbal feedback received from mediation trainers and trainees, the MCI was revised to its current 26-item format. To continue the instrument's development, we invite additional feedback from Alternatives' readers.

Explaining the Quadrants

The differences between the types of mediators on the grid are significant. According to Prof. Riskin, "the principal strategy of the Evaluative-Narrow mediator is to help the parties understand the strengths and weaknesses of their positions and the likely outcome at trial. To accomplish this, the Evaluative-Narrow mediator typically will first carefully study relevant documents, such as pleadings, depositions, reports and mediation briefs. Then, in the mediation, she employs evaluative techniques … which are listed from most to least evaluative."

The Facilitative-Narrow mediator "plans to help the participants become realistic about their litigation situations. But he employs different techniques. He does not use his own assessments, predictions or proposals. Nor does he apply pressure. Moreover, he probably will not request or study relevant documents, such as pleadings, depositions, reports or mediation briefs. Instead, because he believes that the burden of decision should rest with the parties, the Facilitative-Narrow Mediator might ask questions—generally in private caucus—to help the participants understand both sides' legal positions and the consequences of non-settlement."

The Evaluative-Broad mediator "helps the parties understand their circumstances and options. However, she has a different notion of what this requires. So she emphasizes the parties' interests over their positions and proposes solutions designed to accommodate these interests. In addition, because the Evaluative-Broad Mediator constructs the agreement, she emphasizes her own understanding of the circumstances at least as much as the parties'."

The Evaluative-Broad mediator "also provides predictions, assessments and recommendations. But she emphasizes options that address underlying interests, rather than those that propose only compromise on narrow issues."

The Facilitative-Broad mediator "seeks to help the parties define, understand and resolve the problems they wish to address. She encourages them to consider underlying interests rather than positions and helps them generate and assess proposals designed to accommodate those interests."

After taking the test below, the box at the end explains the scoring method, which will place you on the grid. Where you are on the grid provides a snapshot of your natural tendencies as a mediator. It does not necessarily limit your ability to move around the grid by using different strategies and techniques depending on the circumstances of the case.

Instructions

Review each statement below from the perspective that you are a mediator, and indicate the extent to which you agree or disagree by checking the appropriate box and recording the score. When you are finished, follow the accompanying Self-Scoring Instructions.

MCI'S Problem Definition

This section of the survey concerns the goals of a mediation. The statements are designed to measure the scope of the problem(s) that the mediation seeks to address or resolve.

1. I encourage the parties to focus on resolving the specific, legal problems.