Friday, February 29, 2008

Mediation Quality Task Force (Mediator Analytical Techniques)

I have posted on the American Bar Association's Section of Dispute Resolution Task Force on Improving Mediation Quality report and its first two findings, Mediation Preparation, here, and Case-by-Case Customization, here. In this post, I will review and comment upon the report's third finding, the Mediator's "Analytical" Techniques. The task force found a substantial difference between the willingness of mediation users to have mediators apply various "evaluative" mediation techniques and the mediators' own willingness to do so. This is probably the most interesting finding of the task force and, for the development of mediation as a coherent practice and methodology, also the most perplexing.

Mediation users (in this task force report, users are counsel who represent parties before mediation rather than the parties themselves) approve of the use by mediators of both facilitative and evaluative mediation analytical techniques. Users believe by substantial majorities that it is important for mediators to use such facilitative techniques as the mediator's asking pointed questions that raise important issues, providing an analysis of the case that identifies important strengths and weaknesses and suggesting ways to settle the conflict. Mediators also agree that these techniques are valuable.

Where users and mediators differ are the appropriateness of using such evaluative mediation techniques as the mediator's offering an independent assessment of a party's case, such as by providing the mediator's own valuation of the case or a prediction of the likely court results, or applying pressure for a party to accept a proposed settlement. Users also believe that these evaluative techniques are useful, albeit by smaller majorities than with respect to facilitative techniques, while mediators are much more hesitant to find these evaluative techniques useful and by a substantial majority do not believe they are appropriate in any and all mediations.

At first blush, this is a highly perplexing result for mediation, since there seems to be a basic difference in understanding the appropriate rules of engagement between mediation users and mediators. Perhaps it is better for mediators to be more rather than less hesitant to venture forth with evaluative inputs, and the fluidity of mediation may prevent it from ever developing a common set of groundrules. However, the report goes on to identify factors that users find important in determining their own receptivity to evaluative inputs from the mediator, and it is in this list of factors that the report finds its greatest contribution.

Users seem to be voting for a situational approach to mediation, and are willing to have the mediator be increasingly evaluative, depending upon the following factors:

whether assessment is explicitly requested;
extent of mediator’s knowledge and expertise;
degree of confidence mediator expresses in assessment;
degree of pressure mediator exerts to accept assessment;
whether assessment is given in joint session or caucus;
how early or late in process assessment is given;
whether assessment is given before apparent impasse or only after impasse;
nature of issues (e.g., legal, financial, emotional);
whether all counsel seem competent; and
whether mediator seems impartial.

These results highlight an important process question that should be addressed before the mediation: the mediator should discuss with counsel not only the mediator's style and willingness to engage in both facilitative and evaluative mediation, but also counsels' preferences as to whether to participate in an evaluative mediation and under what conditions. This may seem to be overkill and may even put the mediator in the position of having to defend the actual application of his or her mediation techniques, compared to what was discussed in the pre-mediation conference. But the watchword for all mediations is collaboration, and if the mediator and counsel agree not only on the usefulness of evaluative inputs from the mediator but also the conditions for their use, for example only in caucus and after an impasse has been reached, then the mediator will likely be more confident in applying these evaluative inputs and counsel will be more receptive when they are made.

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