John Lande, JD, PhD
This post is republished with permission. The original article is published within the University of Missouri School of Law the Legal Studies Research Paper Series.

In ‘Evaluative Mediation’ is an Oxymoron, Kim Kovach and Lela Love argued that evaluative mediation described in the famous Riskin Grid is a contradiction in terms – essentially not really mediation or the way that mediation should be. Len Riskin responded, “It is too late for commentators or mediation organizations to tell practitioners who are widely recognized as mediators that they are not, in the same sense that it is too late for the Pizza Association of Naples, Italy to tell Domino’s that its product is not the genuine article.”

Although I share Len’s perspective, this article is not about what should or should not be legitimately considered as mediation.

Rather, this article argues that the concepts of facilitative and evaluative mediation themselves are oxymorons. I analyzed problems with these concepts in various pieces in Part 3 of the Real Practice Systems Project Annotated Bibliography (Including the classics Confusing Dispute Resolution Jargon, Houston, We Have a Problem in the Dispute Resolution Field, and “Labels Suck”). So I will not repeat those critiques here.

This article riffs on comments at an excellent program during the ABA Section of Dispute Resolution’s annual conference to illustrate how oxymoronic these terms have become. It suggests ways that we in the dispute resolution field can decide to avoid speaking oxymoron.

Mediators’ Proposals

The ABA program described techniques for making mediators’ proposals. This procedure usually is a last resort after extended unsuccessful efforts to reach agreement. Typically, it is used in high-stakes cases where both sides are represented by attorneys. The parties want to settle but worry that one or both sides are taking unreasonable positions. The procedure can help parties feel more confident in their decisions.

Mediators make these proposals only if both sides agree to the procedure. Indeed, some mediators use the procedure only if suggested or requested by one or both of the parties. Mediators gives a proposal confidentially to each side. It reflects their perception of the terms that both sides would accept. It is not a prediction about the likely court outcome if the case were adjudicated.

If both sides accept the proposal, they have an agreement. If either or both parties reject the proposal, there is no agreement. A party that rejects the proposal doesn’t know if the other party has accepted it or not.

As this description illustrates, this is a specific procedure that the parties agree to, not a unilateral casual suggestion by a mediator.

Two Oxymorons

During the discussion, one person referred to mediators “facilitatively” making a proposal. Another person described mediators “empowering” the parties by asking how much risk they were willing to take. For example, if plaintiffs are willing to take more risk that the defendants would not accept the proposal, the mediators would propose a higher amount. If the plaintiffs were willing to take less risk, the mediators would propose a lower amount.

In the definitive publication defining facilitative and evaluative mediation, facilitative mediation, includes helping parties develop and exchange proposals (in contrast to evaluative mediation where mediators may propose agreement). Thus, by definition, mediator proposals are inherently evaluative and can’t be facilitative.

A recent article by Robert A. Baruch Bush, a founder of transformative theory, identifies the goals and purposes of transformative mediation as “[s]upport[ing] parties in changing their conflict interaction from negative / destructive to positive / constructive; help them recapture strength and understanding.” It requires mediators to “[p]rivilege party decision-making on all matters – content and process.” The reason for this approach is to promote “party empowerment and interparty recognition.” The article states that the “emphasis in the transformative framework on party empowerment opposes any effort by the mediator to bring the parties toward reconciliation.”

Arguably, mediators making proposals and inquiring about their preferred level of risk is transformative by asking about parties’ preferences about the procedure. However, it is designed to promote agreement and it is not designed to promote empowerment or constructive interactions between the parties. Nor is it how mediators generally understand transformative theory.

Presumably, members of the audience kinda, sorta, probably understood what the speakers meant by using the terms “facilitative” and “empower.”

But why misuse terms from traditional mediation theory when there is plain language that expresses these ideas more clearly and without contradicting traditional theory?

How You Can Avoid Speaking Oxymoron

As a public service, this article provides the following suggestions to help you avoid the embarrassment of speaking oxymoron. These suggestions have the added value of making our language intelligible to civilians.

Instead of using the term “facilitative,” we might say the following, adapted from Riskin’s original account:

• Helps parties develop ideas and proposals
• Helps parties evaluate ideas and proposals
• Asks parties about consequences of not settling
• Asks parties about likely court or other outcomes if they don’t settle
• Asks parties about the strengths and weaknesses of the arguments

Note that these are very different techniques. Mediators often use some but not all of them in a given case.

Listening to people using the term, however, they kinda, sorta, probably mean some of the following:

• Is friendly and respectful
• Helps parties understand their case and their options
• Doesn’t (explicitly) pressure parties

Here are the elements of “evaluative” mediation from Riskin’s article:

• Urges / pushes parties to accept settlement
• Develops and proposes agreements
• Predicts court outcomes and consequences of not settling
• Assesses strengths and weaknesses of each side’s case

Again, these are different techniques and mediators who are allegedly evaluative don’t use all of them in a given case. When people use the term, they kinda, sorta, probably mean some of the following:

• Is aggressive
• Doesn’t listen to parties
• Pressures parties to accept the mediators’ ideas

Bush’s description of empowerment is included above. When people use the term “empowerment,” they kinda, sorta, probably mean that the mediator helps parties understand their case and options so that they feel more informed, confident, and assertive and thus can protect their own interests.

Maybe people mean other things when they use the traditional terms of facilitative, evaluative, and empowerment. Who knows? When people use these terms, we don’t really know what they actually mean. We kinda, sorta, probably think we know. But we don’t really know.

As so-called communication experts, it would be nice if we could speak and write so that people actually do know what we mean.

A radical concept.

Try it. You’ll like it.

Author Biography

John Lande, JD, PhD is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He earned his JD from Hastings College of Law and his PhD in sociology from the University of Wisconsin-Madison. Since 1980, John has practiced law and mediation in California, and since the 1990’s, he has directed a child protection mediation clinic.

The American Bar Association has published John’s books, including ‘Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money‘ and ‘Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions‘ (co-authored with Michaela Keet and Heather Heavin).

John frequently writes for the Indisputably blog and has received many awards for his scholarship, most recently the American Bar Association Section of Dispute Resolution’s award for outstanding scholarly work. You can download articles on a wide range of dispute resolution topics from his website.