The Lawyer's Philosophical Map and the Disputant's Perceptual Map: Impediments to Facilitative Mediation and Lawyering

Abstract

Riskin's categorization of mediation has engendered much debate among academics and practitioners. Although most in the mediation community accept Riskin's positive assertion that mediation as currently practiced includes both facilitation and evaluation, a vocal group of purist critics rejects Riskin's pluralist view of mediation on normative grounds. These purist critics -- including such prominent mediator-scholars as Professors Kim Kovach, Lela Love," and Josh Stulberg -- argue that mediation is in fact, and should be, solely a facilitative process "designed to capture the parties' insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes." For the purists, evaluation has no place in mediation." I do not seek in this article to add my voice to the chorus debating the relative merits of the pluralist and purist approaches to mediation. Instead, despite my belief that the pluralists win this debate as both a positive and normative matter, I intend to imagine for purposes of this article that the purists actually prevail upon state legislatures, regulators, mediation trainers, and members of the mediation community at large to mandate a purely facilitative approach to mediation. Having successfully conjured up an image of this purely facilitative mediation world, I then seek to make the impertinent claim that mediation is highly unlikely to be a purely facilitative process as long as lawyers serve as mediators.