Toward More Sophisticated Mediation Theory

Abstract

This is a brief commentary on Professor Jeffrey Stempel’s article, The Inevitability of the Eclectic: Liberating ADR from Ideology, which was the focus of a symposium in the University of Missouri’s Journal of Dispute Resolution. Prof. Stempel addresses the debate over facilitative and evaluative mediation, which he argues is predicated on an ideology that uses a false and overly formalistic dichotomy. I agree with him that some proponents of facilitative mediation take a rigidly orthodox position that facilitative mediation is the only legitimate form of mediation. I also favor the availability of a range of styles of mediation, including evaluative mediation in appropriate situations.

Nonetheless, I argue that the facilitative-evaluative debate has helped generate benefits that Prof. Stempel's article does not adequately acknowledge. Facilitation proponents have highlighted how mediation can promote many important values such as party self-determination, and they have cautioned about risks of unfairness created by mediator evaluation. The debate over the propriety of facilitative and evaluative techniques has stimulated a better appreciation of the appropriateness of these techniques in different types of cases. It has also contributed to reducing ill-considered evaluation practice. It may also cause mediators to question taken-for-granted mediation theory, reject simple assumptions, and develop a more sophisticated understanding of the process.

Keywords: mediation, mediation styles, mediation philosophy, mediation ideology, mediation theory, evaluative mediation, facilitative mediation, pluralism, orthodoxy