New Hampshire Bar Journal
2005 Summer, 5.
A Conversation With Leonard L. Riskin
New Hampshire Bar Journal Volume 46, No. 2, Pg. 5 Summer 2005 A Conversation With Leonard L. Riskin Bar Journal Author -
Attorney Peter J. Gardner interviewed noted mediation scholar Leonard L. Riskin for this issue of the New Hampshire Bar Journal. Prof. Riskin is C.A. Leedy and Isidor Loeb Professor of Law at the University of Missouri-Columbia School of Law and is Director of the law school's Center for the Study of Dispute Resolution.
Gardner: Why is mediation becoming an increasingly prominent option to settle disputes?
RISKIN: The most prominent reason is that the alternative, going to trial, is very expensive and takes a long time. Beyond the issue of cost, there is the perception that mediation can produce a better process and, maybe, a better outcome. Courts have limited remedial powers whereas in mediation the parties can design a process and a solution that really make sense in the particular situation, a process and a solution that address the parties' real interests.
Gardner: How would you define a "successful" mediation?
RISKIN: A "successful" mediation could be defined in different ways. The minimal level of success, conventionally, is that the parties stop disputing.
In his book, The Dynamics of Conflict Resolution, Bernard Mayer looks at conflict along three dimensions: the behavioral dimension - which behaviors are causing the dispute; the cognitive dimension - how people understand the dispute; and the emotional dimension. When lawyers speak of settlement, we are usually speaking about the behavioral dimension, about stopping the disputing behavior. A cognitive resolution would mean that people in a dispute acquire a new understanding of the dispute or of their relationship and feel intellectually comfortable with the way it has been settled. Emotional resolution means the parties are emotionally comfortable with the settlement and therefore are no longer suffering because of it.
It is possible to say that a mediation could be successful even if it doesn't settle the case. That is, sometimes parties cannot settle a case in a mediation and may still go to court, but they nevertheless achieve a certain cognitive or emotional resolution, though not a behavioral resolution.
A really successful mediation would...