Call Mediation Profs – part II

In an earlier post I described the program scheduled at the ABA Dispute Resolution Section’s meeting in New York City.  The program – the Law Professors’ Forum: Mediation Shop Talk – is set up to discuss how to incorporate the findings of some recent studies into our teaching.   One commenter showed an interest in what will be discussed (hoping it dealt with clients), so I thought I’d include an executive summary of the two studies we’ll be discussing.  Enjoy.

 

The Secrets of Successful (and Unsuccessful) Mediators Continued: Studies Two and Three (Negotiation Journal (2007), Stephen B. Goldberg and Margaret L. Shaw   

The authors surveyed successful commercial mediators and lawyers who hire them, in an effort to identify what mediators and the lawyers who hire them believe are the key qualities of good legal mediators. According to the authors:

“The central conclusion to be drawn from these three studies is that a — if not the— core element in mediator success is the mediator’s ability to establish a relationship of trust and confidence with the disputing parties. . . The mediator’s skills are also important, but these were less often cited…Finally, and of considerable importance, [d]ifferent mediators succeeded on the basis of different combinations of attributes and skills.  

Implications for Mediators, Trainers, and Advocates

Perhaps the most important finding of this research for the practicing or aspiring mediator is that the key to mediation success is quite straightforward:  

·        obtain the trust and confidence of the disputing parties by being friendly and empathic, by demonstrating high integrity, or by being intelligent, well prepared, and/or knowledgeable in the relevant law or contract; and

·        be capable of taking advantage of the trust and confidence of the parties to assist them in resolving their dispute by exercising …skills…

 

“Some aspects of achieving success as a mediator can be achieved by training, but others cannot:

·        The mediation trainer cannot train aspiring mediators to be smart or to know the relevant law or contract, but he or she can emphasize the importance of being well prepared…

·        Similarly, the trainer can emphasize the importance of integrity, for example, by using simulations to put trainees in situations in which they are tempted to act inappropriately…

·        The instructor cannot teach empathy,…but he or she can teach ways of showing genuine concern through demonstrations and interactive exercises

·        [It is worth remembering that the most widespread criticism] was not of mediators who lacked a particular skill, but of the mediators who were perceived as doing nothing to assist the parties other than relaying messages.

 

“Finally, the findings of these studies could be useful to advocates, such as attorneys and labor negotiators, who engage in mediator selection. It is commonplace for advocates in search of a mediator to [ask] “How good a job did X do for you in the ABC mediation?” or words to that effect. Based on this research, however, we advise advocates to ask more pointed questions relating to the mediator’s empathy, integrity, knowledge of the relevant contract or law, persistence, etc., focusing on those skills or attributes that the advocate believes would be most useful in resolving the particular dispute for which a mediator is being sought…”

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality, Final Report

 

The ABA Task Force organized ten sets of focus group discussions across the US and Canada consisting of outside counsel, in-house counsel, and non-attorneys whose responsibilities included working for parties in mediation.  Later focus group sessions included small groups of experienced civil mediators.  In addition to the focus groups, the Task Force collected more than 100 responses to questions from mediation users and mediators and conducted thirteen telephone interviews with individuals who had been parties in mediation.

 

The Task Force Report identifies four issues to mediation quality, but in the forum, we will focus on two of the issues that dovetail nicely – preparation and customization.[1]  The fundamental question we will be asking is how we should include these issues in our teaching of mediation.  To kick off that discussion, below is a brief summary of some of the Task Force’s findings and suggestions on mediation preparation and customization.

 

Mediation Preparation. On the preparation side, we will be focusing on lawyer preparation.  The Task Force found that lawyers and their clients consider a pre-mediation phone call to be an important aspect of preparation as it prompted attorneys and clients to prepare for the mediation.  Furthermore, the Task Force found that mediating parties want their attorneys to be as prepared for mediation as they are for trial, for they believe settlement is based on how much is known about the case, which is based on the level of preparation.  Parties who feel that their lawyers have prepared them for what will happen at mediation are happy with their lawyers, and those who feel that their lawyers have not adequately prepared them for the experience are not happy with their lawyers.

 

Customization. As for customization, the Task Force advised mediators to refrain from using a cookie-cutter approach to every mediation.  The report suggests evaluating each case on its own and to develop a process that is best tailored to the needs of the parties and the dispute in coordination with parties and counsel, particularly for the mediation’s timing and the use of a joint session for the parties’ opening statements.  For example, in some cases inflammatory opening statements are counterproductive and in others they are not.  Only by involving counsel in the planning of the process can the mediator listen to what counsel has to say about whether the parties should have joint opening statements.  Flexibility in these matters was found to be a desirable quality in mediators.


[1]  The other two were analytical assistance by the mediator and persistence.

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