Sunday, February 24, 2008

Mediation Quality Task Force (Mediation Preparation)

The American Bar Association's Section of Dispute Resolution Task Force on Improving Mediation Quality has issued its final report, and you can download a copy here. I summarize in this post the report's findings and will discuss these findings over the course of the next few posts, beginning in this post with mediator and user preparation for mediation. Every mediator and mediation user should read this report. Here's why.

The Report focused on four main issues that are important and contributed to mediation quality (the report focused on mediation in civil cases involving large commercial or other disputes in which parties are represented by counsel):

1. Preparation for mediation by the mediator, parties, and counsel
2. Case-by-case customization of the mediation process
3. “Analytical” assistance from the mediator
4. “Persistence” by the mediator

The report found that mediators and mediation users (by which it means counsel) believe preparation for mediation is an important criterion of success. Recommended preparation includes review by the mediator of existing documents and briefing regarding the claim, production by users of a mediation statement (designed in collaboration among the users and the mediator) for the mediator to review prior to the mediation, and holding pre-mediation telephone or in-person conferences to discuss issues and concerns that might be anticipated to arise in the mediation. These conferences can be separate meetings between the mediator and each party, or joint meetings.

An interesting conclusion in the report concerns whether mediation users should provide input with respect to process issues concerning the mediation in pre-mediation conferences.

"Perhaps the most interesting finding about the preparation phase was that sophisticated repeat mediation users wanted to have substantive input into the mediation process itself. Traditionally, the mediation process is controlled by the mediator and the outcome is controlled by the parties. We found, however, that in pre-mediation discussions, many users wanted to advise the mediator about process issues such as whether opening statements would be useful in a particular case, or about which issues in the case would best be handled in joint sessions and which in caucuses."

I have found that a mediator can "set the tone" for a constructive mediation in the pre-mediation conference, and to do this it is very useful for a mediator to invite suggestions from counsel regarding process. An inquiry into process is much more likely to lead to agreement among the parties and the mediator than any preliminary inquiry into substance, so a process inquiry can both help the mediator anticipate how to proceed as well as to garner party goodwill to proceed cooperatively. Process questions are more likely to represent low-hanging fruit than substantive questions, from the mediator's standpoint, and counsel truly appreciate the opportunity to help shape the process (as opposed to their experience in most courtrooms). Process inquiry is a good way to start off on the right foot.

The other interesting focus of the report was the question of the importance of the mediator's subject matter knowledge.

"To a very substantial degree, users endorsed the importance of subject matter knowledge, and in complex areas, subject matter expertise may be preferred. Those who value subject matter knowledge may be influenced in reaching their viewpoint by the understanding that a mediator may provide parties and counsel with opinions, analyses, or evaluations about certain aspects of the case or suggestions or proposals about how to settle—and that those with subject matter knowledge would be better suited to these tasks. Even in cases where users do not want the mediator to provide analytical assistance or to offer opinions, it is still often useful for mediators to have enough subject matter knowledge to understand the details and implications of the dispute, without requiring explanations from the participants during mediation sessions. This does not, however, take precedence over process expertise, which is essential for high quality mediation."

Subject matter knowledge is both a blessing and a curse for the mediator. It can be a blessing if the mediator uses his or her knowledge of the law and general practice in the subject matter field of the conflict to ask better and more probing questions, and to generate more insightful and realistic options. It can be a curse if the mediator starts to take a position on the merits of the conflict, sacrificing neutrality and losing effectiveness by doing so. The more I think I know in a mediation about the merits of a conflict, the less acutely I listen. As I always say to the parties in my introduction, I as a mediator decide nothing. I find no facts and I pronounce no law. Primarily, I say this to remind myself.

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