INTRODUCTION

The necessity for establishing a uniform system of mediation training for mediators in the United States is evidenced by the inconsistencies in both the training of mediators throughout the country and the roles assumed by mediators during mediation.^[1] The more formal conception of mediation can be traced back to the 1976 Pound Conference,^[2] however mediation in general is much older than twenty-six years, and has since continuously evolved.^[3] Moreover, the concept of mediation, as defined by statute, training, and thereafter, licensing, varies amongst the states as well.^[4] Mediation provides a viable alternative to the rigid state and federal judicial systems’ requirements for court litigation, where disputing or conflicting parties can express their own concerns as to one another, and can, in turn, help the opposing party better understand its perspective.^[5] Mediation incurs minimal procedural requirements while providing unlimited opportunity for the parties to exercise flexibility in communicating their underlying concerns and priorities regarding the dispute.^[6] Furthermore, mediation permits the parties involved to play an active role in determining mutually amenable solutions and resolutions to their own conflict.^[7]

However, people cannot always simply meet with their opposition and figure out sensitive, emotional, and often heated, and overwrought disputes, on their own.^[8] This may be because the parties do not trust one another, they do not understand the true issues, or they are simply too frustrated and angry at one another making settlement or agreement impossible without the help of a neutral party.^[9] Settling conflicts between disputing parties is one of the primary uses of the judicial system, however, the judicial system is not efficient.^[10] This inefficiency was one reason for the development of mediation. Mediation provides an alternative system where disputants can utilize the advantages that a mediator can offer as a neutral party with no stake in the outcome, while still maintaining control of their own respective destinies.

Considering its effectiveness, mediation remains grossly underutilized and the inconsistency in practice leads to projecting bad results from past experience with other mediators.^[11] It is not that people have not heard enough about mediation to think of it as an option. The reason is more basic: many find the alternative attractive. For them, litigation carries with it immense psychological and other perceived benefits. Mediation comes not as a welcome resource, but as a deprivation.^[12]

For those of us who support and have practiced mediation, we understand the overwhelming benefits of the system, the likelihood that agreements reached using the mediation process are more frequently adhered to than those ordered by a judge, and the efficiency, both in time and dollars, that mediation purports.^[13] This Note proposes that one way to resolve the problem created by inconsistent practices of mediation across the country is to institute a uniform national mediation system. In such a system, the requirements to attain a mediation license or certification can be governed by a standardized set of guidelines. Furthermore, a standardized system can better serve the needs of the people by properly educating and training mediators in the process of mediation and, in some sense, homogenizing mediation throughout the country. The goal is to maintain consistency along with the flexibility of mediation that is so crucial to the process and practice. In turn, people should more readily put their faith in the system. This Note does not propose that the United States, and mediation in general, is presently ready for a national uniform system. However, the time for instituting uniformity and standardization into the world of mediation within the United States is nearing.

Part II of this Note will discuss the components of the Uniform Mediation Act (hereinafter “UMA”).^[14] In doing so, this section will examine the possible effects of the confidentiality components, as devised by the UMA, upon the practice of mediation.^[15] In tandem, an exploration of the reasons for limiting and/or altering the content covered by the UMA will ensue. Second, this section will begin to emphasize the importance of refining the definition of mediation, including guidelines for mediation practice, the training of mediators, and the stylistic approaches of mediators. The purpose of this part is to demonstrate that presently, the United States, under the current UMA, is not prepared for country-wide uniformity, due in part to the inability to come to wide-spread consensus as to what mediation precisely is, and to the failure of the UMA to reconcile those differences.

The third part of this Note will assess why the current system of mediation is not totally effective by examining the various styles of mediation and how the inconsistencies among mediators’ styles lend to ineffectual mediation in many instances. This section of the Note will explore mediation styles such as: facilitative, evaluative, a combination of the two, and transformative, before suggesting how a possible uniform mediation system should be developed. More importantly, this section is essential in order to decipher a systematic and universal scheme in which mediators should be trained.

Part IV of this Note will analyze the effects of permitting evaluation in mediation. It will explain the importance of precluding evaluation in the mediation context. In turn, this section will establish that an appropriate definition of mediation should characterize it as a purely facilitative process. Consequently, such a definition could be the source for any future uniform system proposing to do justice to mediation, as the practice was intended to be.

Part V of this Note will touch upon the dangers of codifying a uniform system too strictly. This section will discuss some measures that must be taken in order to preserve, rather than sidestep, the true purpose of mediation: an alternative to the current, overloaded, rigid and difficult judicial system intended to promote meaningful communication between parties. This system should not frustrate the fact that mediators are not always attorneys or judges, and it should reinforce the idea that being an attorney is not necessarily a requirement for being a mediator.^[16] Mediation is an alternative to the judicial system, not merely another arena for attorneys to battle it out. In turn, this part will promote the notion that mediation should remain an informal and efficient alternative to the traditional legal system.

In conclusion, this paper will advance options for the future, and will hopefully convince the readers that a uniform system of mediation in this country will truly benefit the masses. Moreover, these benefits conferred upon society will reward the legal system as well, in that they will condense the courts’ caseloads by providing people with a dependable alternative medium to litigation to resolve disputes, such as mediation. In other words, mediation provides a viable, efficient, valuable and amiable process of alternative dispute resolution (hereinafter “ADR”) for the courts and the masses alike.

A. A Brief Overview

Establishing a uniform mediation training system in the United States will not only enhance the effectiveness of mediation, but it should enhance the attractiveness of the process as well. People are more likely to utilize mediation, as an alternative to the traditional judicial system, if there are some national requirements for licensing mediators, and national guidelines for the mediation process.^[17] People need a system that they can trust and rely upon in order to entrust their circumstances to the practice.^[18] The failure to develop performance-based methods of credentialing mediators may lead to an arbitrary system of qualification, one imposed by the courts or other central authority,^[19] or a huge divergence between mediators ability to effectively mediate a case. At the present time, with the diverse mediation training systems throughout the country, requirements for mediators range widely from programs that require apprenticeships with a mentor to performance-based evaluation subsequent to twenty hours of training. Moreover, some states mandate degree requirements while other states only require short intensive training and observation sessions. The latter results in the rapid permeation of improperly or moderately trained mediators.^[20]

In addition, the state regulations that govern the mediation process provide for different kinds of mediation techniques. For example, Florida prohibits a mediator from predicting what award a particular judge would make, but arguably permits mediators broad powers of evaluation.^[21] Conversely, the Texas ADR section of the Bar prohibits mediators from giving legal or other professional advice to the parties, but rather, as an alternative, it provides that the mediator should advise the parties to seek professional legal advice.^[22] Moreover, mediation centers are often established in connection with the state judicial system, but actually vary from county to county, causing inconsistencies throughout individual states.^[23]

A uniform mediation training system, for example, would ensure that people in all five boroughs of New York City and those in Albany are at least receiving qualified mediators that are certified or approved on the state or federal level.^[24] Accordingly, a uniform mediation training system is the first step towards enhancing the attractiveness and availability of mediation to the country as a whole.

 

PART II:   MOVEMENT TOWARDS UNIFORMITY OF MEDIATION IN THE UNITED STATES:

Those who have actively sought to bring mediation into the institutional structure as an effective means of settling conflict have a belief system that incorporates two fundamental premises: One, that the mediation of disputes is a more highly evolved method of resolving conflict and is the manifestation of a more sophisticated political order; and two, that government and public authorities can and should rightly include that process in the established legal order to encourage settlement of disputes.^[25]

 

A. Is Uniformity an Option for Mediation at the Present Time?

                  The Model Standards of Conduct for Mediation^[26] was developed by a joint committee composed of two delegates from the American Arbitration Association, two from the American Bar Association and two from the Society of Professionals in Dispute Resolution.^[27] The purpose of developing these standards was to serve as a guide for the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.^[28] The Model Standards of Conduct for Mediators was simply the first step in the progression of mediation towards a uniform system in this country. Its intention was not to standardize a specific style or type of mediation, but to engender overall ethical guidelines for mediators to base their practices upon.^[29] In turn, the Model Standards of Conduct for Mediators applies to all mediation techniques, implying that mediation, in fact, encompasses numerous styles and methods. However, the lack of criteria guiding a standardized style for mediators to base their practice upon is the proximate cause of the disfigurement of the practice itself, as well as the difficulty in providing a dependable uniform system of mediation in this country.^[30]

B. Uniform Mediation Act

At the current time, the UMA is in progress. The goal of the UMA is to promote the ever-growing value that mediation provides as an alternative dispute resolution means to the rigid rules of the conventional judicial system. Moreover, mediation purports to maintain, and even advance the rights of the parties involved. Much controversy has arisen surrounding the implementation of the UMA.^[31] First, the UMA primarily focuses on confidentiality in mediation.^[32] The UMA includes multiple provisions regarding confidentiality and exceptions to that confidentiality privilege.^[33] One provision in particular will protect the parties and the mediators interests by prohibiting the use of the communications made during mediation to be exploited in legal proceedings following the mediation.^[34] According to section (4)(a) of the UMA, unless otherwise provided for in section (6), a mediation communication is confidential and, if privileged, is not subject to discovery or admissible in evidence in a proceeding.^[35] Of course, in the sense that mediation at the current time does provide for certain exceptions to the general rule, the UMA allows for disclosure of information outside of the mediation in specific instances or circumstances. Such circumstances, permitting disclosure of otherwise confidential information to courts, administrative agencies, and some other government entities, involve threats of bodily harm, reports of abuse and/or neglect, or if the mediation is employed as a guise for future crime.^[36] Accordingly, the act currently “strikes a better balance between preventing criminals from using mediation to hide the planning of a crime, while still allowing brainstorming where an individual may innocently offer an option which might be technically illegal but which should not cause a total waiver of privilege.”^[37]

In addition, the Act provides parties with the right to be accompanied by a friend, family member, and/or lawyer.^[38] However, many mediators believe that having additional parties involved in the mediation may draw away from the strength of mediation.^[39] In turn, the UMA expressly provides protection to individuals participating in the mediation process who are neither the parties, parties’ representatives, nor the mediator.^[40] The UMA’s intention is to provide a safe-harbor for friends of the disputants and other “outsiders,” who, for example, may be financial consultants or technical experts.^[41]

The proposed UMA is insufficient in the respect that it merely provides for regulations concerning confidentiality during and following mediation. Overall, the purpose of the UMA is credible. However, the UMA fails to incorporate substantial provisions necessary to the practice of mediation, it overcomplicates some extremely important conditions that it sets forth and it does not properly define certain terms that are the essence of the act itself.^[42] Moreover, the UMA does not incorporate standards for the training and qualifications of mediators, whether evaluation is acceptable in the mediation arena, and whether degree based credentials are necessary, amongst other things.

(1)    Lack of Training and Credentialing Specifications

                  The UMA limits it’s instructions regarding mediator training, credentialing, or qualifications to what is set forth in sections (9)(c) and (9)(f). Section (8)(c) only requires a mediator to disclose the mediator’s qualifications to mediate a dispute if a party to the mediation requests them. Thereafter, the UMA, by way of section (9)(d), precludes a mediator from asserting any privilege provided by the act under section (4)’s privilege against disclosure, admissibility, and discovery provisions if the requirements of section (9)(c) are not adhered to.^[43] Moreover, section (9)(f) explicitly states that “this act does not require that a mediator have a special qualification by background or profession.”^[44] Thus, according to the UMA, there are no necessary training qualifications for a person to become a mediator. Moreover, regardless of the fact that there are no training requirements for mediators in the act, any party to the mediation may ask the mediator for his or her qualifications. If that mediator fails to reveal them in accordance with the provisions of the act, the consequence is that the confidentiality of the mediation is undermined because the mediator is prohibited from asserting any of the privileges of protection given under section (4) of the UMA.^[45] Accordingly, a mediator may be subpoenaed to testify in court against disputants.^[46] The effect is most detrimental to the parties that attended the mediation, rather than the mediator, whereby mediation communications may no longer be confidential.^[47]

                  In order for an effective system of mediation to be instituted, which can be relied upon by the people of this nation, some form of criterion and training must be required in order to practice mediation. There are a number of reasons why mandated training and criterion for mediators is necessary. First, there is the issue of mediator competency. “There are mediators and those that call themselves mediators simply because they have a law degree, sat on the bench, or have taken a one-day training course given by any number of the newly established ADR companies that have sprouted up across the nation.”^[48] Without mandating certain minimum training requirements and a system for credentialing mediators, in effect, anyone “can claim that he or she is good at all of the essential mediation criteria – even though many would-be mediators possess only one or two of these skills to any adequate degree….”^[49]

                  Training programs are often mandated by the state in the case of court-annexed mediation.^[50] States may also mandate minimum training requirement for mediators.^[51] However, the minimum requirements in order to become a mediator, if there are any, range from six-hour or less training courses to more stringent requirements of twenty-five hours and apprenticeships.^[52] The problem under the current system is that a potential party does not know what they are going to get; i.e. a properly trained mediator who has undergone apprenticeships and has established himself/herself in the field or a mediator who has just finished a six-hour training course. A mediator’s qualifications and style might differ from another regardless of whether each has fulfilled the minimum training standards or not. Moreover, an inadequately trained mediator maynot be able to properly handle certain situations involving questions of law.^[53] Consequently, the second reason to mandate specific criteria and training for mediators, questions regarding the unauthorized practice of law, surfaces.

                  Permitting a person to mediate cases and conflicts without a certain minimum level of training could very well lead to that person giving unacceptable and unlawful legal advice.^[54] In many situations this would constitute the unauthorized practice of law. A non-attorney who is permitted to mediate a case without training may be totally unaware that there even exists a law prohibiting the unauthorized practice of law. This presents a major problem for mediation if not confronted and resolved.

                  At the present time many states simply rely on the mediation codes of ethics which often bar mediators, in the context of mediation, from rendering advice or services concerning legal or professional issues.^[55] Two states have currently tried to tackle this issue.^[56] The Virginia Guidelines on Mediation and the Unauthorized Practice of Law, prohibit mediators from giving legal advice, noting that “when … law-related activities occur during mediation, they may raise … issues of the unauthorized practice of law^[57] for non-attorney mediators.”^[58] Consequently, if a mediator drafts an agreement, evaluates a case, advises or gives his or her opinion as to the legal rights of a person or entity, he or she could be committing the unauthorized practice of law.^[59] Accordingly, one possible remedy to this situation would be to mandate certain training requirements for mediators, educating them in the proper drafting of agreements. More importantly, however, is to instruct non-attorney mediators as to the proper conduct for a mediator, in accordance with the law, so that they can avoid violating the law while still assisting the parties effectively.^[60]

(2)    Confidentiality Problems

                  It is readily accepted that a common and core premise inherent in mediation is confidentiality.^[61] Section (4) of the UMA affords the privilege of confidentiality to the participants of a mediation. The confidentiality provision of the UMA extends confidentiality further than simply inadmissibility and evidentiary considerations, to protect any communications that arise in the context of mediation.^[62] Accordingly, this provision ensures legal protection for the participants in the mediation by prohibiting the dissemination of contract terms, conditions and other information to the media, other counsel in additional cases or through the Internet. However, the confidentiality provisions of the UMA are subject to the exceptions provided in sections (5), (6), and (9) of the Act.^[63] Consequently, the scope of the confidentiality provision, as well as the uncertainty that arises due to the exceptions to the confidentiality provisions, may present some problems and complicated situations for parties in mediation.

Section (5) of the UMA provides for waiver to confidentiality. First, section (5)(a) affords the parties the ability to waive the confidentiality privilege by expressly agreeing to the waiver either in record or orally during a proceeding.^[64] This presents a possible conflict with section (6)(a)(1), which states that confidentiality is waived if there is a signed record of the waiver, and does not include waiver for oral agreements.^[65] The ability to permit waiver orally could expectedly cause problems in the courtroom, as well as elsewhere. Conversely, section (5)(a)(1) and (5)(a)(2) require that the mediator or other nonparty participants must also expressly waive his or her privilege of confidentiality in order for the waiver to affect confidentiality.^[66]

Second, section (5)(b) states that a person who discloses or makes a representation about a mediation communication,^[67] which prejudices another,^[68] is precluded from asserting the privilege to the extent that the other party needs to refute or respond to the disclosure. Consequently, a party may introduce into court, although the act does not permit, information that may be beneficial to that party or detrimental to the other party, without any consequence except that the other party may use information communicated in the mediation to refute or respond to the disclosure.^[69]

Third, section (5)(c) maintains that a party may not assert the privileges of section (4) if he or she “intentionally plans, attempts to commit or commits a crime, or conceal an ongoing crime or ongoing criminal activity.” Moreover, section (6) provides an exception to the privilege when a threat or statement of a plan to inflict bodily injury or commit a crime of violence takes place. However, section (4) seems to provide a privilege only in the case of discovery or admissible evidence in a proceeding. This complicates interpretation as to exactly what the exception refers. Subsequently, it is not clearly indicated in the UMA whether a threatened harm or violence is an exception to confidentiality for purpose of warning victims or notifying proper authorities.^[70] In addition, section (7) only permits a mediator to disclose to an agency responsible for protecting individuals against abuse, neglect, abandonment, or exploitation. Nevertheless, once again, the Act fails to indicate whether possibility of bodily harm or violence to another person is permitted to be disclosed to the authorities or an agency. As a result of the lack of simplicity and clarity of the UMA, the act is difficult to understand and interpret.^[71]

Fourth, The UMA, in section (6)(a)(6), provides an exception to the confidentiality privilege in situations where malpractice or professional misconduct filed against a party, non-party, or representative of a party based on conduct occurring in the mediation. Section (6)(b) annuls the confidentiality privilege under section (4) if “a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication sought”^[72] involves a felony or misdemeanor^[73] or a claim to avoid liability on a contract arising out of the mediation.^[74] However, section (6)(c) maintains that a mediator may not be compelled to provide evidence of a mediation communication concerning section (6)(a)(6) or (6)(b)(2).^[75]

Conversely, section (9), referring to the mediator’s disclosure of conflicts of interest and background, presents another problematic situation. Section (9)(d) provides that a mediator who fails to strictly adhere to subsections (a), (b), or (c), is precluded by the violation from asserting any privileges under section (4), thereby, in effect, compelling the mediator to testify in court.^[76] This provision effectively creates uncertainty as to what communications during and after the mediation process may be challenged in court.^[77] “The chilling effect on communications made to the mediator held to a standard, which often is difficult to apply in practice and hence become vague and arbitrary.”^[78] In actuality, the negative effect rests on the parties to the mediation, rather than the mediator, whom confided in the mediator under a promise of confidentiality.^[79]             

Accordingly, the exceptions to the confidentiality privilege in the UMA cause the protections afforded to parties in a mediation to be ultimately futile.^[80] Ultimately, the numerous uncertainties generated by the confidentiality components of the UMA give rise to the question as to whether this Act is proper for implementation, but more importantly, whether the country is ready for a uniform system of mediation without being able to resolve such crucial issues as confidentiality. However, the many reservations regarding the UMA are not limited to the confidentiality dilemma, but also lie in resolving, and attributing, appropriate definitions to crucial terms included in the Act.

(2)           Definitional Problems

There are three primary definitional problems within the section (2), Definitions. First is the definition of “mediation communication” proposed by the UMA. Mediation communication is defined as “a statement, whether oral, in record, verbal or nonverbal, that is made or occurs during a mediation or for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.”^[81] “It is not clear that the definition of mediation communication is broad enough to encompass conduct not intended as a “statement” or involves demeanor, reactions or other nonverbal actions of participants. If a matter is outside the definition of a mediation communication then it is not privileged or protected.”^[82]

                  Robert A. Creo lists certain situations which can be construed as outside the definitional realm of mediation communication according to the UMA, which are: (1) scars or other physical attributes of participants; (2) blinking or nervous reaction of the eyes during the joint session or in caucus; (3) coughing or other physical action; (4) blushing/face red when a proposal or other statement was made by opposing counsel; (5)limping or other physical activity; (6) ability or inability to speak or understand language; and (7) what people ate at the mediation or if they smoked.^[83] Consequently, in accordance with the UMA definition of mediation communication, a mediator could be called into trial to testify to any or all of the aforementioned events since these events may be conduct which falls outside of the definition of a statement as required by the UMA.^[84] Moreover, as it is generally known that attorneys are skilled in detecting and exploiting possible uncertainties or loopholes in legislation to the benefit of their clients, this ambiguous definition may cause problems.^[85]

                  The second definitional problem that arises from the UMA concerns the Act’s depiction of the term “mediation.”^[86] The UMA defines mediation as “a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.”^[87] The primary problem created by this definition is that the scope of acceptable mediation styles and practices is never resolved. Under the UMA, mediation may now incorporate all sorts of different styles and approaches to mediation. Consequently, the UMA does not address the different styles and approaches that are appropriate for mediation or the debates surrounding the definition of mediation,^[88] which at the present time is extremely poorly defined. Moreover, by allowing such a broad, open-ended definition of mediation, and, thereby permitting mediators to employ whatever style they choose, the UMA fails to resolve an extremely crucial issue concerning uniformity in the practice of mediation. Further discussions regarding the nature of mediation are essential to the practice and implementation of an effective uniform system. This is necessary because many more public authorities and courts employ, encourage, and even order disputing parties to attempt mediation.^[89] Thus, presently, the principal question is whether this country is ready for broad endorsement of the use of mediation when its present use is not so accurately defined.^[90]

                  The third definitional problem surrounds that of the word “mediator.” The term mediator, under the current definition, refers to any person who conducts a mediation and permits any person, regardless of training or credentials, to mediate. Moreover, due to the fact that mediators have varying techniques and styles, the unclear and indistinct definition of who is a mediator will inevitably cause problems for the public when trying to determine if mediation is the proper ADR mechanism for their dispute. Without a more explicit definition, people may be considered mediators when they are actually practicing other forms of ADR. The definition does not depict a mediator as someone who has completed any minimum training or has any mediation experience. Thus, the inexplicit definition of who is a mediator leaves much room for contention as to what credentials constitute a mediator, what styles mediators can use, and what minimum training a mediator must have.

PART III: VARYING STYLES OF MEDIATION

A.              A Working Definition for What Mediation Actually Is

Due to a lack of an explicit definition, mediation has branched out to include many different dispute resolution styles, which are not, in actuality, mediation.^[91] This is one reason that the current system is not totally effective. Based upon the current state of mediation, people who employ mediation are not sure whether their mediator is truly competent because there is no national standard qualifying mediators.^[92] This uncertainty in the field detracts from the true potential of the system to resolve conflicts outside of the courtroom efficiently, morally, and properly. In order to effectively construct a uniform system of mediation training and practice in this country, some clarity must be reached as to what mediation is, how it is practiced, and what techniques are proper or improper.

The mediation field has expanded and has undergone an evolution since its creation. Consequently, there has been a perennial debate over which style of mediation is proper.^[93] As Leonard L. Riskin stated, a bewildering variety of activities fall within the broad, generally-accepted definition of mediation, a process in which an impartial third party, who lacks authority to impose solution or determination, assists others to resolve a dispute or plan a transaction. ^[94] Accordingly, the mediation debate is actually over what this broad definition of mediation encompasses, and more specifically, the debate centers on the ability or morality in providing some sort of analysis or evaluation of the parties’ positions by the mediator. Evaluation itself is not exactly immoral, although the circumstances that can arise from evaluative mediation may be immoral.^[95] In addition, evaluation detracts from the potential of the process in promoting collaboration between the parties.

Riskin’s article then proceeds to acknowledge strategies and techniques of mediators as either facilitative, assisting the parties negotiations, or evaluative, analyzing issues and positions central to the mediation.^[96] Riskin has created a map explicating and defining the scope of mediation styles called the “Riskin Grid.”^[97] The Riskin Grid differentiates between four varying styles of mediation dependant upon the mediator’s orientation in relation to two continua; the narrow-broad^[98] problem definition and the evaluative-facilitative role.^[99] During Riskin’s discussion of mediation, he implies that when a mediator’s technique is evaluative, it is still within the bounds of mediation. This contention, however, is not correct.^[100] Giving the same label of mediation to activities, which involve different levels of intervention into conflict evaluation and facilitation misleads and cripples with confusion the genius of an otherwise dynamic and powerful process.^[101] Accordingly, this Note disagrees with the implications of the Riskin Grid because it is based upon progressing towards a uniform system of mediation in the United States, while maintaining the purpose of mediation, allowing the parties themselves to resolve their dispute in a mutually agreeable manner. Moreover, his expressions of the different types of mediation are more probably not mediation at all, but rather different types of alternative dispute resolution.

Presently, mediation is used to describe all the varying styles that have developed in mediation practice since the advent of the system in the 1970s. Consequently, in order to implement any uniform system, narrowing the scope or definition of what exactly mediation encompasses is obligatory. The evolution of mediation has propagated numerous styles ranging over a broad spectrum of decision powers and techniques, from a purely facilitative nature to ones with semi-judicial connotations.^[102] Moreover, if a standardized or uniform system of mediation is to be implemented, policy provisions that are appropriate for one kind of mediation may not be appropriate for another. Therefore, it is necessary to discuss the various forms of mediation, and subsequently, to propose the proper form that should be employed when developing a uniform system of mediation training and practice.

B. Facilitative Mediation

In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions; validates and normalizes parties’ points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process, while the parties are in charge of the outcome.^[103]

 

The purpose of facilitative mediation is to empower the parties with decision-making authority and control, and to assist the parties in understanding one another without suggesting solutions but rather helping them fashion their own solutions. As a facilitative mediator, the neutral does not necessarily have to be an expert in the topic of the dispute, but rather, the mediator must be skilled in facilitating understanding and communication between the parties, defining issues, setting up a workable agenda, uncovering the hidden interests of the parties, helping the disputants to generate options, and implementing the agreement.^[104]

However, the facilitative-mediator should not judge or direct the parties in the mediation, and should abstain from giving any sort of professional advice. Instead, a facilitative mediator should direct the parties to seek outside professional or legal advice.^[105] There are two approaches to the facilitative style of mediation. A facilitative mediator may be either directive or non-directive.^[106] When a facilitative mediator is directive, she tries to educate the parties as to the strengths and weaknesses of their claims and the likely consequences of failing to settle.^[107] A facilitative mediator does so without evaluating the case herself, but rather, by asking the parties to evaluate their own case.^[108] The mediator does not assess, predict, propose solutions or present her personal opinion as to the parties’ situation. Instead, the facilitative mediator asks questions that lead to a better understanding of the strengths and weaknesses of the parties’ situation. This should be done in a caucus.^[109] Nevertheless, a facilitative-mediator will generally hold joint sessions with all parties present as to engender a better understanding of each parties’ points of view and positions.^[110] Moreover, a directive-facilitative-mediator will help the parties cultivate a feasible proposals, and thereafter, help the parties exchange^[111] and evaluate the proposals.^[112]

In effect, a directive-facilitative approach to mediation educates the parties as to their situations, and promotes understanding among the parties, as well as the feasibility of other options. In sum, according to Riskin, a directive-facilitative-mediator does five things to smooth the progress of the mediation, including:

(1)    Helping parties to evaluate proposals themselves

(2)    Helping parties to develop and exchange position based proposals

(3)    Asking about consequences of not settling

(4)    Asking about likely court or other outcomes

(5)    AND, Asking about strengths and weakness of each sides’ case^[113]

The non-directive-facilitative-mediator’s strategy is similar to that of the directive- facilitative approach. However, the primary goal as a non-directive-facilitative-mediator is to help the parties define the subject matter of the mediation in terms of underlying interests and to help parties develop and choose their own solutions that respond to such interests.^[114] The non-directive-facilitative-mediator assists the parties to understand the underlying interests, and develops and proposes broad, interest-based options for settlement, rather than position based proposals, as a directive-facilitative-mediator would do. Finally, the non-directive-facilitative-mediator will help the parties to evaluate their proposals and the consequences that those proposals, or of non-settlement, may have on their interests.^[115] In sum, Leonard L. Riskin says that a non-directive-facilitative-mediator applies four techniques during mediation in order to ameliorate the situation:

(1)    Helps parties evaluate proposals

 

(2)             Helps parties develop and exchange Interest based proposals

(3)             Helps parties develop options that respond to their interests

(4)             AND, Helps parties to understand each others interests^[116]

C. Evaluative Mediation

Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge or jury would be likely to do. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness.^[117]

 

                  The evaluative mediator basically helps the parties understand the strengths and weaknesses of their positions and the likely outcome of litigation.^[118] In order for a mediator to properly, and as accurately as possible, evaluate the parties, she must have a legal background; otherwise her evaluation would be unethical and immoral. Similarly to facilitative-mediation, evaluative mediators are either directive or non-directive, but their techniques are converse to that of the facilitative mediators. A directive-evaluative-mediator will regularly assess the strengths and weaknesses of each side’s case, usually after some prior research of the subject. She would then rationalize her analysis by establishing her legal expertise and understanding of the subject.^[119] Additionally, the directive-evaluative-mediator will often predict outcomes of litigation or other courses of action and propose position-based compromises to the situation, also based on her knowledge and opinion.^[120] Moreover, a directive-evaluative-mediator will frequently encourage the parties to settle the situation.^[121] In sum, a directive-evaluative-mediator, as indicated by Leonard L. Riskin, will employ four primary techniques while mediating to foster an agreement between the parties, which are:

(1)    Forcing or goading the parties to accept position based settlement

 

(2)             Proposing position based agreement

(3)             Predicting court or other outcomes

(4)             Assessing strengths and weaknesses of each sides’ case^[122]

Non-directive-evaluative-mediation, like non-directive-facilitative-mediation, focuses on the interests of the parties, but it employs similar techniques as that of the evaluative style. It is distinguished from directive-evaluative-mediation, in that the mediator can be either extremely evaluative on all or some of the issues or less evaluative on some issues and more on others. The mediators strategy is to familiarize herself with the circumstances and underlying interests of the parties as well as that of third parties who may be affected by the situation, and thereafter, exploit the information she has gathered in order to guide the parties to resolution.^[123] Overall, Riskin maintains that non-directive-evaluative-mediators utilize four methods to drive parties to resolution, which are:

(1)    Urging the parties to accept interest-based settlement

 

(2)             Developing and proposes interest based agreement

(3)             Predicting impact of not settling on the interests of the parties

(4)             AND, Educating herself about the parties interests^[124]

 

C. Transformative Mediation

Transformative mediation is based on the values of empowerment of each of the parties as much as possible, and recognition by each of the parties of the other party’s needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation. Transformative mediators meet with the parties together, since only they can give each other recognition.^[125]

 

                  According to Robert A. Baruch Bush and Joseph P. Folger, the creators of the transformative approach, the transformative style of mediation falls into the non-directive-facilitative category of the Riskin Grid.^[126] Bush and Folger’s transformative approach to mediation incorporates both the interest based and position based mediation styles.^[127] The focus of the transformative style is on empowerment and recognition.^[128] Bush and Folger explain that the purpose of mediation is indeed to resolve disputes and effectuate settlements; however, there is a special opportunity for the mediator to work for empowerment and recognition.^[129] In turn, that work will help bring about the transformative dimensions connected with the process of creating a higher vision of self and society, one based on moral development and interpersonal relations rather than on satisfaction and individual autonomy.^[130] Overall, the transformative approach to mediation incorporates styles of the facilitative approach in conjunction with the directive and non-directive practices of mediation. Moreover, Bush and Folger assert that the transformative dimensions of mediation matter as much as or more than settlement and that has become the focus of transformative mediation.^[131]

                  Overall, the transformative style of mediation is consistent with that of the facilitative role of the neutral, but focuses on the empowerment and recognition of the parties. Transformative mediation does not incorporate evaluative techniques, but rather, it gives the parties the ability to assess their own situations with the goal of allowing the parties to create the optimal situation for themselves.

D.     Can Mediation Incorporate All Styles and Techniques, Or is it Too Broad?

                  Presently, mediation is a term used to incorporate numerous different styles, where mediators assume various roles in the process reaching far beyond that of a facilitator, whose goal is to assist parties to come to a resolution through self-determination.^[132] The Riskin Grid, which includes varying styles of ADR into mediation, in effect, depicts such ADR processes as arbitration and neutral evaluation as processes of mediation.^[133] As Kimberlee K. Kovach and Lela P. Love note, “by mixing the functions traditionally associated with arbitrators, case evaluators, and judges with those of mediators, the Grid suggests that mediation significantly overlaps with those other processes.”^[134] However, the distinct feature of mediation is that the neutral does not determine the outcome or the likely outcome, as an arbitrator or neutral evaluator would.^[135]

                  Accordingly, mediation is clearly different from other ADR processes as it is not one focused on the adversarial role of parties, but one focused on self-determination predicated on the collaboration of the parties without the intervention and decision making authority of a third party.^[136] Evaluation by a mediator will likely sway the way that the parties negotiate their settlement.^[137] As a result, the outcome may not precisely reflect a settlement or agreement that all the parties are truly happy with.^[138] On the other hand, both facilitative and transformative mediation are geared toward party self-determination where the neutral party assists but does not intervene in or assess the parties’ situation. If the practice of mediation incorporates both the facilitative and evaluative approaches, confusion and disagreement as to the role of the mediator, as well as to the expectations of the parties, will ensue.^[139] Consequently, some consensus as to what styles and techniques mediation incorporates is necessary in order to properly develop codes of ethics, implement adequate training programs, and select skilled and competent neutrals.^[140]

Part IV: Defining Mediation: A Necessary Step for Uniformity

                  For purposes of developing a uniform mediation system in the United States consistent with the true goals of mediation, selecting a specific style of mediation is critical. In turn, this style choice assists in the development of a widely acceptable working definition of mediation that could be used in developing a proper training program for mediators and establishing uniformity in the field. This Note takes the position that evaluation is not proper for a mediator and that it detracts from the focus on the parties’ self-determination by encouraging parties to focus on the mediator’s suggestions and evaluations.^[141] This Note shall purport to address the trouble with evaluation in a mediation context. Accordingly, this Note will analyze Lela P. Love’s article, The Top Ten Reasons Why Mediators Should Not Evaluate.

A.              Which Style of Mediation is the Proper Style

                  In her article, Professor Love discusses the conflicting roles of evaluators and facilitators in mediation, as well as the effects upon the process and the parties.^[142] Numerous concerns are raised when permitting evaluation in the mediation context.^[143] First, mediation, as a practice, is a forum for a neutral to shift the participating parties from outright adversaries to a collaborative effort to resolve their dispute so that both parties come out winners.^[144] By endorsing or authorizing evaluative mediation, the more adversarial context central to the litigation process^[145] becomes the focus of the parties in order to prove their side.^[146] This, in turn, impedes the progression of mediation as a collaborative process.^[147] The evaluator is viewed by the parties as the decision maker, to whom the parties need to make their case and their side more appealing, while trying to make the other side look as bad as possible.^[148] In Love’s words, “evaluation promotes positioning and polarization, which are antithetical to the goals of mediation.”^[149]

                  Second, there are serious ethical considerations that arise when mediators evaluate.^[150] In order to evaluate any legal claims or defenses, a mediator must be an attorney in order to avoid committing the unauthorized practice of law.^[151] “When mediators opine on the likely court outcome or analyze the merits of claims or defenses, such activities raise questions about the expertise necessary to give an opinion, the duty to research prior to evaluating, and the liability of a neutral for erroneous conclusions.”^[152] Moreover, if the mediator does take on an evaluative role, he or she has the duty to properly inform the parties of the new role that he or she is now assuming.^[153] In addition, he or she must get the permission and consent of the participating parties before doing so.^[154] In turn, by permitting evaluative mediation, and thereby necessitating that mediators be attorneys, the result may be the elimination of non-lawyers from the mediation field.^[155] Such a result would be a likely outcome because once a mediator takes on other responsibilities, such as evaluation of court outcomes or assessing the strengths of a legal argument, the mediator also becomes answerable to the responsibilities, obligations and regulations required by those actions.^[156] With such increased obligations and the threat of committing the unauthorized practice of law, the removal of non-lawyer mediators from the field seems inevitable. The problem is that the removal of non-attorneys from a system that is supposed to be an alternative to the normal modes of dispute resolution, which are controlled by the lawyers and the legal system, will then become just another forum controlled by the same lawyers and legal system. Mediation would be immensely weakened if the services, insight, talents and perspectives of non-attorneys were eliminated from the field.^[157] But, possibly more detrimental to mediation would be the foreseeable proclivity for the “lawyer operated” system to become adversarial rather than collaborative.^[158]

                  Third, currently, the focus of mediation is for the parties to interact and better understand one another, not to convince the mediator who is right or wrong. The neutral’s role in mediation is that of assisting the parties. However, in an evaluative context, the parties would fall into an adversarial manner focusing on the mediator and not on one another. This, in effect, would reduce, and perhaps even eliminate, the creativity and collaborative properties inherent to mediation.^[159] Moreover, evaluation may hinder the prospects for party negotiation because the mediator’s evaluation may lock a party into a position.^[160] Additionally, it may harm the parties’ perception of the mediator as a neutral due to the mediator’s evaluation favoring one side over another.^[161] Thus, it should not be the role of the mediator to assess the strengths or weaknesses of a case because his/her job is to help the parties do so on their own.^[162]

                  Finally, taking all of the aforementioned into consideration, in order to promote uniformity in the field of mediation, a uniform understanding of mediation itself is essential to the progress and livelihood of the practice. This Note surmises that evaluation in certain scenarios can be beneficial in the mediation context. Accordingly, though, once an evaluation is made the context is no longer mediation, but becomes another process altogether. It is then the job of the mediator who does evaluate to properly inform the parties of the changing paradigm from mediation, a non-evaluative practice, to an evaluative process.^[163] This is necessary because by commingling the processes into one, both mediators and consumers cannot be sure what they are going to get.^[164] When parties decide that they want “mediation,” that is what they should get; a neutral who will assist them in resolving their own disputes by self-determination, not by pontificating to one side that they are right or wrong.^[165]

                  Accordingly, evaluation should not be permitted under the guise of mediation. It detracts from parties’ abilities to reconcile their differences through self-determination, focuses their attention on winning over the mediators evaluation, causes stand stills in the negotiation process, confuses people as to a general consensus as to what mediation actually is, places the mediators in positions that could cause them to commit the unauthorized practice of law, and may eliminate the ability of non-attorneys to continue practicing mediation. Consequently, the facilitative style, not an evaluative style or a hybrid of the two, should be the basis for defining mediation. Such a definition should provide consumers and mediators alike with a uniform understanding of the practice of mediation and how they will benefit from the process. In turn, such a definition can be used to generate uniformity in both the training and the practice of mediation throughout the country.

PART V:                    Establishing a Uniform System of Mediation

[the] more mediation is made to look like a court or litigation procedure, the less social and practical utility it will have and the more it will take on the adversarial characteristics and shortcomings of litigation.^[166]

 

                   In establishing a uniform system of mediation, it is necessary to make clear the apparent independence of mediation from court litigation procedures and other adversarial processes. One of the major concerns that arise in establishing uniformity or standards for mediation is that the practice will be influenced by the legal system and more closely reflect the norms and traditional practices that are evident in the courtroom.^[167] Currently, mediation serves as an alternative to litigation, and thus, in codifying a uniform system of mediation this principle must remain a core function of the mediation process. Accordingly, as mentioned before, the definition of mediation must be carefully worded so as not to exclude non-lawyer mediators and not to include other processes that are different than mediation. Subsequently, a key component in codifying mediation resides in maintaining and even necessitating party self-determination.^[168]

                   In addition to maintaining the true purpose of mediation, when codifying mediation, it is essential to resolve uncertainties pertaining to the unauthorized practice of law.^[169] Currently, legislation governing the unauthorized practice of law varies from state to state and is extremely ambiguous.^[170] Today, the courts determine what constitutes the unauthorized practice of law, and their determinations are based upon tests of their own design.^[171] As a result, it is clearly evident that the lack of an explicit definition describing what constitutes the practice of law in mediation has left the courts with no guidance for determining, and mediators with no guidance on how to avoid, the unauthorized practice of law.^[172] Therefore, it is necessary to establish some uniform guidelines and understanding throughout the states clarifying the issue of what the unauthorized practice of law in the context of mediation actually encompasses.^[173] Accordingly, prohibiting evaluation in the mediation context limits the ability of a mediator to undertake the unauthorized practice of law. However, this prohibition does not totally eradicate the possibility of mediators committing the unauthorized practice of law, because currently, reality-testing and even agreement drafting has been deemed, in some instances, the practice of law.^[174] Therefore, in establishing a uniform system of mediation, drawing distinct lines between mediation and the practice of law is essential.^[175]

                   Another major concern that must be addressed more aptly than was done by the UMA are the confidentiality components.^[176] The primary issue relates to the ramifications for both the parties and the mediators of construing to strictly or too loosely the confidentiality provisions.^[177] Mediation requires confidentiality for the parties and the mediator in order to be fully effective. The need for mediators to report certain acts or violations of the parties or their lawyers opposes and compromises core values central to mediation.^[178] The effect would be that parties may be inclined to withhold information that could be vital to the resolution of the dispute for fear of some sort of legal action or punishment. Thus, it is critical to provide as much protection to the confidentiality of the mediation as possible, rather than make confidentiality a privilege subject to exceptions.^[179]

                   Finally, in establishing uniformity in mediation, creating minimum standards of training and credentialing is crucial. Training and credentialing standards are critical because today people characterize themselves as mediators based solely on their occupational licenses and/or minimal training classes.^[180] Due to this country’s inaction in establishing training and credentialing standards, qualification systems for other fields have instead been used to establish mediator qualifications.^[181] Serving as an attorney or a judge, even if an excellent one, does not immediately qualify one as a properly trained mediator.^[182] Consequently, the skills that the public attributes to mediators are based upon other professions.^[183] Moreover, the “limited and arbitrary training standards help encourage a process of devaluation of the mediation field’s skill demands.”^[184] Hence, it is imperative that training requirements be established. These minimum training standards should incorporate intensive training to develop those skills that are essential to effective mediation.^[185]

                   The minimum mediator training standards should incorporate not only educational and training preparation, but must also include actual mediation experience.^[186] These standards should not be federally based but guided by a federal standard, yet still based and operated by state mediation centers. The states themselves should have the power to augment their mediator training programs as they see fit, but these standards must, at a minimum, conform to the federal standards. Thus, national standards ensure that mediators are at least qualified accordingly, but states can enhance those requirements to suit the needs that they determine.

                   The import for permitting state augmentation of training standards is evidenced by the fact that currently states and agencies require different levels of training for different types of mediation, whether it is in Small Claims Court, at the community level, for EEO or ADA cases, and for those dealing with domestic violence or divorce.^[187] However, not all states or agencies have mandated minimum training requirements for mediators. Thus, in order to promote uniformity throughout the states, and maintain a high level of integrity for mediation, minimum training standards should be established nationwide.

VII:            Conclusion

                  The numerous debates surrounding the implementation of a uniform mediation system in this country suggest that we are not ready to enact nationwide standards and regulations for mediation yet. Before uniformity in the field can be obtained there are issues that must be addressed. These issues revolve around mediator styles, training, credentialing, confidentiality, determining an acceptable definition of mediation and what constitutes mediation communication, as well as the unauthorized practice of law.

                   The development of mediation over the years suggests that the field is ever evolving and the issues surrounding mediation are not exhaustive. Mediation has evolved to incorporate numerous styles and has infiltrated numerous professional fields from community disputes to million dollar commercial disputes. The expansion of mediation into various realms of dispute indicates that it is widely utilized. The lack of regulation in the field has lent to its flexibility, but it has also detracted from its ability to be defined properly.

                   Establishing uniformity within the field is crucial to its growth and acceptance as a viable alternative to litigation processes. Disputants will more readily rely on the process if there are some defining lines as to what mediation is and what the parties can expect. Requiring national training standards for mediators will only add to the effectiveness of the process as well as its acceptance by the masses. If disputants can rely on mediation then they will have another dependable, viable avenue to resolve their disputes besides litigation and the courts.

                   Consequently, the current, tremendous burden and enormous caseloads infecting the court system will be somewhat relieved. By implementing national standards of mediation, many of the concerns raised will be satisfied. However, before this can be achieved, the numerous issues currently surrounding the field must be dealt with and answered. If this can be achieved, mediation can then take the next step; establishing guidelines and criteria that will provide consensus, consistency and understanding of the mediation process.