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2000 J. Disp. Resol. 321 (2000)
Toward More Sophisticated Mediation Theory

handle is hein.journals/jdisres2000 and id is 327 raw text is: Toward More Sophisticated Mediation Theory John Lande* I. INTRODUCTION In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field.' He focuses on the debate over facilitative and evaluative mediation' and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns,' and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article. To balance the analysis, this commentary outlines some of the benefits of the debate and the important contributions of facilitation proponents. Before discussing the issues supplemental to Stempel's analysis, it is worth summarizing Stempel's key points that I believe are well taken. First and foremost, there is an important value in having a range of styles of mediation, including evaluative mediation. Mediators frequently mix facilitative and evaluative techniques in individual cases, which is often appropriate and beneficial.4 Appropriate use of predominantly one approach or the other may vary in part depending on the type of case.5 Some facilitation proponents take a rigidly orthodox view that facilitative mediation is the only legitimate form of mediation,6 predicated on an ideology that uses a false and overly formalistic dichotomy.' At least some of the discord over facilitative and evaluative techniques is based on whether the mediators are lawyers or not, with lawyers tending toward a more evaluative * Associate Professor and Director, LL.M, Program in Dispute Resolution, University of Missouri- Columbia School of Law. Thanks to Lela Love, Bobbi McAdoo, Len Riskin, Jean Stemlight, and Nancy Welsh for comments on an earlier draft, with the usual absolution of responsibility for my sins. 1. Jeffrey W. Stempel, The Inevitability of the Eclectic: Liberating ADRfrom Ideology, 2000 J. DISP. RESOL. 247. Professor Stempel presented his paper at the University of Missouri-Columbia Center for the Study of Dispute Resolution Annual Lecture on September 29, 2000. 2. For definition of these terms, see infra Part II. 3. John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 FLA. ST. U. L. REV. 839, 872-74 (1997). 4. Stempel, supra note 1, at 248-49, 263-69. For my similar views, including advocacy for pluralism in mediation practice, see Lande, supra note 3, at 854-56, 869-71, 895-96. Some facilitation proponents also endorse a mixture of facilitation and evaluation as long as the process is clearly labeled. See. e.g., Lela P. Love & Kimberlee K. Kovach, ADR: An Eclectic Array of Processes, Rather Than One Eclectic Process, 2000 J. DiSP. RESOL. 295, 296-97. 5. Stempel, supra note 1, at 285-90. For a discussion of the appropriateness of facilitative and evaluative techniques in different types of cases, see infra Part IV. 6. Stempel, supra note 1, at 249-51. 7. Stempel, supra note I, at 269-71.

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