“Give me the touchy-feely mediator; I have sensitive parties and this is a sensitive case.” “Give me a mediator who will insert himself or herself and let us know what we should do.” “Give me a mediator who will tell us whether or not we have a good case.” “I want the mediator to tell the other side they have a bad case.” “I want a mediator who won’t insert themselves into the negotiations and mess things up.” “Let us do the negotiating; the mediator should not try to control us.” These are typical comments from attorneys ruminating on the qualities they wish to see in the mediator they select.

      The problem is that they are searching for a mediator in all the wrong places. Just as one looking for a mate does not say, “I want a man who is strong only” or “I want a woman who is pretty only.” They want someone who is malleable and able to be compatible in varied circumstances. In fact, counsel and parties really want a mediator who exercises good judgment as to the type of approach to be taken depending upon the conditions present during the mediation.

      Of course, such a mediator is not born with the varied abilities to be all things to all participants. They must spend time becoming educated and trained, and they must have extensive mediation experience in order to have the ability to use the widest range of techniques and styles possible in helping to resolve disputes. They can be all things to all mediation situations.

      Mediators emerge from various backgrounds. Forums for mediation range from international settings to small neighborhoods. There are governmental agencies and private businesses employing mediators. Courts employ programs utilizing mediators from the ranks of lawyers. Community mediation centers have been emerging throughout the country, many funded by various state agencies. Many universities and law schools now have mediation programs, several offering advanced degrees in dispute resolution. The mediation field is expanding with lawyer and non-lawyer practitioners. While we in legal arena are most familiar with lawyer or judge mediators, many come from other professions and fields such as government, social sciences, mental health, accounting, business, real estate and medicine. Some enter the field with no formal background, believing they have the “knack” for mediation.

      With such a wide variety of sources and the fact that individuals come with a variety of backgrounds, temperaments, experiences, beliefs, approaches to problems, social skills, education, sociological groups and so on, there are an array of styles and approaches that mediators pursue in performing their work.

It is no surprise that various styles of mediation have emerged. A concept is generally held that mediators range from non-evaluative to evaluative, and facilitative to directive. In 1996, in an attempt to quantify this concept, Professor Leonard L. Riskin formulated a means to study and define or label mediators in this respect. The “Riskin Grid” was born.

      The “Grid” is a demonstrative graph which places a mediator at a point on the graph which categorizes the mediator as very evaluative or very facilitative, or somewhere in between, and very facilitative or very directive or somewhere in between. A form is completed by the participant and from answering several questions, scores are tallied, the ultimate result of which determines the placement of that mediator within the grid. They are essentially then labeled relative to “orientations, strategies and techniques” as being or leaning in one direction or the other relative to their styles within the two categories. Using this Grid, mediators and presumably parties using a particular mediator, could know the style of mediation that would take place if the mediator were evaluated pursuant to the Grid.

      The idea of the Grid evaluation spread seemingly to every corner of the training and education fields. It had an appeal similar to a personality test which draws individuals to it out of curiosity if nothing else. As a result, the Grid evaluation became very popular among universities and other education and training arenas.

      With the popularity of the Grid, the concept of categories of styles caught on. This first was in the education and training field but eventually spread to those who regularly used mediation services, including lawyers.

Attorneys are now expressing interest in whether a particular mediator has a directive or non-directive style and whether the mediator evaluates or does not evaluate. These attorneys wish to gravitate toward mediators fitting within the category they desire. Another way to express it is that the attorneys want to know whether the proposed mediator is “touch-feely” or is inclined to get in and evaluate the parties’ positions and direct their course in resolving the case.

      What about this? Is such an approach to selecting a mediator valid? Riskin himself now says “no.” Under increasing criticism from scholars, Professor Riskin admitted that the Grid is not a valid test to determine the orientations, strategies and techniques of mediators. In his article published in the University of Notre Dame Law Review, Professor Riskin retracts his previously stated view that the Grid accurately determines and measures the approach a mediator would take relative to the Grid categories. ⁴

      This makes sense. While there is a tendency of particular mediators to exhibit one style or another relative to evaluative verses non-evaluative or directive verses facilitative approaches, the fact is that those mediators who are trained and experienced have learned that they cannot mediate using one particular style or approach for every mediation. They realize that a myopic approach inhibits the mediator and the parties from effectively finding an agreement point especially in a litigated case.

      To be effective, mediators must make an evaluation as to that approach which is best for the particular mediation. A “one size fits all” mindset is crippling to effective mediation. A mediator must be malleable as to approaches to be as effective as possible. A maturation process occurs in mediators as they are educated, trained and become more experienced.

      In fact, it seems the most effective mediators are those who are able to change approaches as a chameleon changes colors, to fit the surroundings. It is not that a particular mediator is good for a particular mediation due to a particular style; it is that a mediator is able to adapt styles that are best for the circumstances. These circumstances vary and even change periodically during a mediation.

      If a mediator is not malleable, it is likely because that mediator is not sufficiently schooled or experienced and does not realize the importance of constantly evaluating the mediation itself and the participants, to determine the type of approach to be used at certain times during the mediation. It is also true that an approach taken with one party or counsel may differ from that taken with others in the mediation. In short, seasoned mediators cannot be categorized except as to their willingness and ability to sense and adjust to the mediation conditions just as a sailor adjusts and changes sails to keep a boat on course and moving efficiently toward its waypoint.

      Instead of the question: “Is he or she evaluative, directive or ‘touchy-feely?,’” it should be: “Is the mediator sufficiently trained and experienced so that they are willing and able to utilize a wide range of styles and approaches and use those which are most effective at the right time during the mediation?” These are the mediators who stay busy and who are reported, by those using their services, to be effective.

      [*Mr. Peterson is a private mediator with an LLM degree and Master’s Degree in Alternative Dispute Resolution from Pepperdine University School of Law, Straus Institute for Dispute Resolution. Prior to receiving these degrees, he received a general Mediation Certificate and Certificate from the course, “Mediating the Litigated Case,” both awarded by Pepperdine. His private business is the “Professional Center for Dispute Resolution – Central Coast Mediation,” with mediation centers and locations, in San Luis Obispo, Santa Maria, Santa Barbara and Ventura. Mr. Peterson is on mediation panels for the courts of San Luis Obispo and Santa Barbara Counties. He also serves on the Panels of Judicate West (statewide) and the ADR Section of the San Luis Obispo County Bar Association, of which he is the president. He was one of the first three mediators awarded the “Advanced Practitioner” status on ADR Section panel. His mediation experience over the past nine years covers a wide range of disputes, including real property, construction, probate litigation, personal injury, insurance, legal & medical malpractice, labor, commercial, family, governmental entity, property owner associations, mobile home parks, and maritime.]