Variations in Mediation: How-and Why-Legal Mediators Change Styles in the Course of a Case

Abstract:     
The issue of mediator style-what techniques a mediator may appropriately use to encourage settlement-has been hotly debated. Very few articles, however, have examined how "commercial" mediators-neutrals who work with substantial legal cases-actually work. This article describes the results of an experiment in which several mediators were placed in a roleplay format and filmed as they attempted to settle a large commercial dispute. Using a modified Riskin Grid, the article charts and compares stylistic changes in two neutrals as they mediated the same case. The article finds that the mediators did not employ a single style, but rather that their style varied widely over the course of a mediation and even during a single meeting. All of the mediators began in a broadly facilitative mode, but soon offered evaluative comments concerning the bargaining situation. Mediators almost never explicitly evaluated legal issues, but they did give cues as to their thinking. The article concludes that the differences in the styles of the observed neutrals were driven much more by variations in the tactics used by the parties and lawyers, than by the neutrals' inherent stylistic tendencies.

Number of Pages in PDF File: 22

Keywords: Evaluative, Directive, Facilitative, Broad, Narrow, Mediator Style

JEL Classification: K41

Accepted Paper Series