Sunday, March 2, 2008

Mediation Quality Task Force (Mediator Persistence)

I have posted on the American Bar Association's Section of Dispute Resolution Task Force on Improving Mediation Quality report and its first three findings, Mediation Preparation, here, Case-by-Case Customization, here, and Mediator Analytical Techniques, here. In this post, I will review and comment upon the report's fourth finding, Mediator Persistence. As with Mediator Analytical Techniques, it is interesting to note that mediation users expect more of mediators than many mediators normally conceive of their role.

All mediators would regard persistence as an important mediator virtue. Indeed, as the task force report puts it, users don't expect mediators to act like a "potted plant," and all mediators would agree (although one can see mediators cautioning users that sometimes listening is an important prerequisite to mediator intervention, and that they can hold off with the watering can for awhile). Users characterize mediator persistence as follows: "trying to keep people at the table, trying to get the case settled by exerting some 'pressure,' and trying to get people back to the table after a mediation session fails to settle the case...Eighty-two percent (82%) of users thought 'exerting some pressure' was an important trait, very important or essential for a mediator to be effective."

I have found that applying pressure often only raises the frustration level arising from an impasse in settlement discussions. A party may want a mediator to apply pressure against the other party, but against the party itself and its counsel, not so much. I am not counselling against pressure by any means. A mediator can apply pressure and maintain neutrality as long as the pressure is applied even-handedly and on a principled basis. But the real question is, how to apply pressure effectively, with respect to the right issues, against the right party, and at the right time.

I have found that every mediation contains a pivot point; an issue that both parties understand to be crucial and with respect to which one party more than the other has the capacity to address. This does not mean that any party wants to make a move at the pivot point, but rather that if the mediation is to become successful, the best pressure that can be applied is to focus on the party that "controls" the pivot point.

There are many impasse-breaking tools that a mediator can use, such as a conditional offer in a caucus (what would you want the other party to offer you if I tell them you might be able to offer X?). But listening, waiting for, and finding the pivot point and the party in the best position to address the pivot point issue is a prerequisite before the mediator dials up the pressure gauge.

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