[*] Copyright © 1997 Leonard L. Riskin. Return to text.

[**] C.A. Leedy Professor of Law and Director, Center for the Study of Dispute Resolution, University of Missouri-Columbia School of Law. I am grateful to Marjorie Corman Aaron, Melody Daily, Catherine Damme, Chris Guthrie, James Levin, Lela Love, Catherine Parke, and Josh Stulberg for helpful comments on earlier drafts. Return to text.

[1] See ROBERT A. BARUCH BUSH & JOSEPH FOLGER, THE PROMISE OF MEDIATION: RESPONDING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION (1995). Return to text.

[2] See Leonard L. Riskin, Understanding Mediator Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOTIATION L. REV. 7 (1996). Return to text.

[3] See Lela Love and Kim Kovach, "Evaluative" Mediation Is an Oxymoron, 14 ALTERNATIVES TO HIGH COST LITIG. 31 (1996); Lela Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937 (1997). But see Dwight Golann, Benefits and Dangers of Mediation Evaluation, 15 ALTERNATIVES TO HIGH COST LITIG. 35 (1997); James H. Stark, The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Questions from an Evaluative Lawyer-Mediator, 38 S. TEX. L. REV. (forthcoming 1997). Return to text.

[4] See generally Love & Kovach, supra note 3.

Jim Alfini says it seems unseemly
Good mediators just don't do it
Mediation's for hashing, not trashing or bashing
If you give them the answer, you blew it.a
But see Bob Moberly, who writes quite soberly
about the Florida scene.b
His viewpoint is reasonable (for an academic, is that treasonable?):
Evaluation, sometimes, is clean.
And see John Bickerman, who says it quicker than
Anyone else who's written
Give the parties a choice, he urges
With the market, it appears, he's smitten.c
Marjorie Aaron, crisp as a clarion,
Tells when and how to do it
If you do it last, with strategic tact
it will likely be a helpful act.d
Evaluative mediation is practicing law
writes Carrie Menkel-Meadowe
And though the idea may harbor a flawf
she seems quite unwilling to let go.g
For ethical problems so serious
they've started a national commissionh
These dilemmas just make me delirious
For some clarification I'm wishin'.
a See James J. Alfini, Should Lawyer-Mediators Be Prohibited from Providing Legal Advice or Evaluations?, DISP. RESOL. MAG., Spring 1994, at 8; James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of "Good Mediation"?, 19 FLA. ST. U. L. REV. 47 (1991).

b See Robert Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997); Robert Moberly, Ethical Standards for Court-Appointed Mediators and Florida's Mandatory Mediation Experiment, 21 FLA. ST. U. L. REV. 701 (1994).

c See John Bickerman, Evaluative Mediator Responds, 14 ALTERNATIVES TO HIGH COST LITIG. 70 (1996).

d See Marjorie Corman Aaron, A Mediator's Soliloquy, 14 ALTERNATIVES TO HIGH COST LITIG. 63 (1996); Marjorie Corman Aaron, The Value of Decision Analysis in Mediation Practice, NEGOTIATION J., Apr. 1995, at 123.

e See Carrie Menkel-Meadow, Is Mediation the Practice of Law?, 14 ALTERNATIVES TO HIGH COST LITIG. 57 (1996).

f See Robert Benjamin, What Is Mediation Anyway? Ethical Issues, Policy Issues and the Future of the Profession, NIDR NEWS, July/Aug. 1996, at 9; Bruce Meyerson, Lawyers Who Mediate Are Not Practicing Law, 14 ALTERNATIVES TO HIGH COST LITIG. 74 (1996).

g See Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers for the Adversary Conception of Lawyer's Responsibilities, 38 S. TEX. L. REV. (forthcoming 1997).

h In 1996, the CPR Institute for Dispute Resolution and the Georgetown University Law Center founded a Commission on Ethics and Standards in Dispute Resolution, which Professor Menkel-Meadow chairs. See id.

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[5] See Joseph B. Stulberg, Evaluative Versus Facilitative Mediator Orientations: Piercing the "Grid" Lock, 24 FLA. ST. U. L. REV. 985 (1997). Return to text.

[6] Actually, it is a lot more complicated than that, but this is a poem. Return to text.

[7] See supra note 6. Return to text.