Doing the Best Mediation You Can

By John Lande

As a mediator who handles civil cases, what can you do to be most effective? What would lawyers and parties most appreciate in your work as a mediator? Conversely, what might you do that would “turn them off,” impede the process, and reduce your chances of being selected again?

These were some of the questions considered by the Task Force on Improving Mediation Quality (Task Force) of the ABA Section of Dispute Resolution, which recently issued its final report ( www.abanet org/dch/committee.cfm?com=DR020600) informed by a survey of experienced mediators and participants in civil mediation. The Task Force findings focus on the following four aspects of mediation that the research subjects said are particularly important: (1) preparation for mediation by mediators and mediation participants, (2) case-by-case customization of the mediation process, (3) careful consideration of any “analytical” assistance that mediators might provide, and (4) mediators’ persistence and patience.

Preparation. The vast majority of the survey respondents said that preparation by the mediator and mediation participants (i.e., lawyers and parties) is very important. Most of the respondents said that lawyers should send a mediation memo to mediators and that it is essential for mediators to read everything they receive (which may include additional documents such as pleadings, legal memos, or expert reports). They also said that mediators and lawyers should talk before the mediation session to discuss procedural and substantive issues, including the “real issues” and potential stumbling blocks. They overwhelmingly said that mediators should discuss who will attend the mediation session and confirm the participation of individuals with appropriate settlement authority. The Task Force research suggests that mediators should use the preparation process to help identify the parties’ goals. It would be a mistake for mediators to assume that “it’s just about the money” or that the only goal is to settle the case.

Customization. The Task Force study found that mediation participants generally said they wanted the mediation process to be tailored to their needs rather than a standardized “cookie-cutter” procedure that is used in every case. Participants said that they appreciated getting coaching from mediators about the process, such as how to frame an argument or whether to discuss particular issues in caucus or joint session.

Mediators can play an important role in scheduling events related to mediations. Most of the survey respondents preferred scheduling mediation sessions to occur after “critical” discovery is completed but before discovery is fully completed. Mediators may coordinate scheduling of mediation with critical discovery or other events and arrange for the timing, process, and content of information exchanges before the mediation sessions.

Survey respondents varied in their preferences for some aspects of the preparation process. Some said they prefer conference calls, whereas others preferred separate conversations between mediators and the lawyers. They also differed about whether, in addition to providing mediation memos to the mediator, each side should provide them to the other parties.

In customizing the process, mediators and lawyers may discuss whether each side should make opening statements at the beginning of a mediation session. Although many mediators and lawyers assume that each side should always give opening statements, a substantial minority of survey respondents said they believe that such opening statements are not helpful in most cases. Moreover, opening statements may not be needed if there has been a lot of preparatory work before the mediation session and if it makes sense to go right into caucus after the mediator’s opening statement.

Mediators would often benefit from eliciting participants’ procedural preferences and following them if appropriate in a particular situation. Mediators who try to impose their process may damage their rapport with the participants and lose some of their confidence that may be needed to help resolve the substantive issues.

Analytical assistance. The Task Force research suggests that many mediation participants want mediators to use various techniques to help analyze the case and promote settlement, though some survey respondents had reservations about certain techniques. Almost all of the mediators and participants said that mediators can be helpful by asking pointed questions and suggesting options to consider. Almost all of the mediation participants and two-thirds of the mediators said that it is usually helpful for mediators to give their analysis of the case. By contrast, a substantial majority of participants but only about one-third of the mediators said that it is helpful in most cases for mediators to make predictions about likely court results, recommend a specific settlement, or apply some pressure. Interviews with parties found that many of them were uncomfortable with mediators giving their opinions or recommendations about specific settlement options.

In actual cases, there are many variables that affect the appropriateness of particular techniques. Substantial majorities of participants and mediators said that all of the following factors might affect their judgment about the appropriateness of a mediator giving an assessment of the strengths and weaknesses of a case: whether the assessment is explicitly requested, the extent of the mediator’s knowledge and expertise, the degree of confidence the mediator expresses in the assessment, the degree of pressure the mediator exerts on people to accept the assessment, whether the assessment is given in joint session or caucus, how early or late in process the assessment is given, whether the assessment is given before apparent impasse or only after impasse, the nature of issues, whether all counsel seem competent, and whether the mediator seems impartial. These issues touch the still-controversial debate over the propriety and value of facilitative and evaluative mediation techniques. The Task Force expressly declined to take a position in this debate.

Persistence and patience. Survey respondents overwhelmingly said they believe that it is important for mediators to be patient and persistent. Participants expressed dissatisfaction if mediators are merely “messengers” or if they give up too easily when negotiations become difficult. These are situations when the antagonists need mediators the most, so it is precisely at these times when mediators should work the hardest to help people deal constructively with the challenges. If a mediation session ends without agreement but has some potential to reach one, the vast majority of participants think that the mediator should contact the lawyers after a week or two to ask whether they want additional help from the mediator. One person summed it up this way: “Never stop talking if there is any hope.”

Continuing to learn about mediation. Mediation is a very difficult craft, and virtually all mediators would benefit from continuing to learn about it. Many mediators attend continuing education programs to learn about mediation theory and practice skills, legal issues, and new developments in the field. Mediators may benefit from additional ways to develop their professional skills, such as routinely debriefing mediations. Mediators can routinely ask lawyers and parties to complete confidential feedback forms after mediations. Similarly, some mediators informally solicit feedback from lawyers after mediations. Mediators can participate in “peer consultation groups” to use a structured process for learning from actual case experiences. The Task Force developed a tool kit to help practitioners adapt the Task Force process to address participants’ needs in their particular area. The tool kit is available on the Task Force’s website ( www.abanet.org/dch/committee.cfm?com=DR020600), which includes model forms.

For More Information About the Section of Dispute Resolution

- This article is an abridged and edited version of one that originally appeared on page 43 of Dispute Resolution, Spring and Summer 2008 (14:3-4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/dispute.

- Periodicals: Dispute Resolution magazine, published four times per year; Just Resolutions eNews, an electronic newsletter published ten times per year providing current information on how to build a successful ADR practice, updates on Section and Committee activities and ADR legislation, and articles by Section members.

- CLE: Annual spring conference, the world’s largest ADR conference; spring and fall advanced mediation or arbitration training institutes; teleconferences.

- Books and Other Recent Publications: Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes; The Negotiator’s Fieldbook; Advanced Arbitration Insight: 20/20 DVD ; Creative Problem Solver’s Handbook for Negotiators and Mediators, vols. 1 and 2.

- Member Benefits: 20% or greater discount on all Section publications; 50% off Ohio Journal of Dispute Resolution; registration fee discounts at annual spring conference; discounted liability insurance for arbitrators and mediators; monthly e-mail updates of conferences, trainings, and job opportunities.

John Lande is Isidor Loeb Professor of Law and director of the LL.M. Program in Dispute Resolution at the University of Missouri School of Law. He may be reached at landej@missouri.edu.

Copyright 2009

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