Bar Journal - Summer 2005
A Conversation With Leonard L. Riskin
Attorney Peter J. Gardner interviewed noted mediation scholar Leonard L. Riskin for this issue of the New Hampshire Bar Journal. Prof. Riskin is C.A. Leedy and Isidor Loeb Professor of Law at the University of Missouri-Columbia School of Law and is Director of the law school’s Center for the Study of Dispute Resolution.
Gardner: Why is mediation becoming an increasingly prominent option to settle disputes?
RISKIN: The most prominent reason is that the alternative, going to trial, is very expensive and takes a long time. Beyond the issue of cost, there is the perception that mediation can produce a better process and, maybe, a better outcome. Courts have limited remedial powers whereas in mediation the parties can design a process and a solution that really make sense in the particular situation, a process and a solution that address the parties’ real interests.
Gardner: How would you define a “successful” mediation?
RISKIN: A “successful” mediation could be defined in different ways. The minimal level of success, conventionally, is that the parties stop disputing.
In his book, The Dynamics of Conflict Resolution, Bernard Mayer looks at conflict along three dimensions: the behavioral dimension—which behaviors are causing the dispute; the cognitive dimension—how people understand the dispute; and the emotional dimension. When lawyers speak of settlement, we are usually speaking about the behavioral dimension, about stopping the disputing behavior. A cognitive resolution would mean that people in a dispute acquire a new understanding of the dispute or of their relationship and feel intellectually comfortable with the way it has been settled. Emotional resolution means the parties are emotionally comfortable with the settlement and therefore are no longer suffering because of it.
It is possible to say that a mediation could be successful even if it doesn’t settle the case. That is, sometimes parties cannot settle a case in a mediation and may still go to court, but they nevertheless achieve a certain cognitive or emotional resolution, though not a behavioral resolution.
A really successful mediation would resolve on all three dimensions, though in real life, of course, that doesn’t always happen.
Gardner: Is there a difference in the definition of success when the mediation is between, say, two neighbors in a small New Hampshire town, as compared to a mediation between two large, sophisticated businesses?
RISKIN: One cannot judge whether a mediation is successful simply by the categories of the parties. It depends on who is deciding on what “success” means. For example, in either of those cases, the parties might consider the mediation a success if it improved their relationship or helped them avoid trial. The real benefit of a mediation is that it has the potential to help the parties define the problem in a way that will be most useful to them, rather than to have to accept an inevitably narrow legal definition of the problem that would apply in court. The extent to which the problem as defined by the parties and the mediator is satisfactorily addressed would enable the parties to assess whether the mediation was a success.
| The real benefit of a mediation is that it has the potential to help the parties define the problem in a way that will be most useful to them, rather than to have to accept an inevitably narrow legal definition of the problem that would apply in court.|
Gardner: Are there situations in which a mediator should impose his or her vision of how a matter should be resolved?
RISKIN: Although I don’t like to generalize about what mediators should do, I think is not appropriate for a mediator to impose his or her vision of how a matter should be resolved. Having said that, what a mediator should do in a particular case should be situational. It should be based on the circumstances of that particular case, on the interests, needs and abilities of the parties and lawyers, and on the capability of the mediator himself or herself. A mediator’s orientation should be de-emphasized, and more attention should be focused on the potential influence that everyone in the room could exercise over a whole variety of procedural and substantive issues. [Professor Riskin has elaborated this idea in an article, Decisionmaking in Mediation: The New Old Grid and the New New Grid System, 79 Notre Dame L. Rev. 1 (2003)]
Whether a mediator should evaluate, and how a mediator should do so, can be decided through the exercise of varying degrees of influence by various participants. Some mediators will refuse to evaluate and others will do so under certain circumstances if the parties want them to. The advantages and disadvantages to having mediators evaluate will be determined largely by the circumstances of a particular case.
Some commentators on mediation think mediators should never give an evaluation, and that if a mediator does so the process is not actually mediation. I don’t subscribe to that view. Whether the mediator should evaluate should depend on all the circumstances, including what the parties want and need, and what the mediator is willing to do and can do.
Gardner: To follow up on that last question, let’s assume that, whether unintentionally or otherwise, a mediator intimidates the parties to the extent that they never will tell him, “We wish you wouldn’t impose your views.”
RISKIN: That kind of behavior is inconsistent with the generally understood notion of mediation, which is that mediation is based on the autonomy and free will of the parties and that the mediator’s views ought to be far less important than the parties’ views.
Having said that, and to modify your question a little bit, it might be that some parties want the mediator to provide strong guidance on how the dispute should be resolved, in which case I think it is okay if they understand what they are getting. However, it is usually better for the parties to work out their own solution, as they usually understand better than a neutral their own situations and their own underlying interests.
A danger, or limitation, is that if the solution advanced by the mediator is based on rules of law, the problem could be framed in a quite narrow definition. In court, cases are resolved by the application of a legal principle to legally relevant facts, whereas in a mediation there is much more freedom for the parties and mediator to explore what is really at stake for the parties. If the mediator promotes a legal kind of solution, he or she may deprive the parties of the opportunity to explore what is really at stake.
Gardner: Do you have a general closing thought on mediation that you would share with New Hampshire’s legal community?
RISKIN: Mediation has the potential to humanize dispute resolution. Mediation has the great potential to contribute to better resolutions of peoples’ disputes through better processes that can give rise to real understanding between people and to healing relationships. Yet in many cases the mediation process has become very legalized, which instead of enabling the parties to interact and to address their deep interests and, perhaps, to heal their relationship, limits them to the issues that would come up in court, or in a negotiation between lawyers in the shadow of court.
Gardner: Thank you, Professor Riskin.