“Leadership is a perpetual exercise in managing conflict.”
–Morris Shechtman, 2003
A 2016 report on a mediation study evaluates and compares the effects on conflict of:
(i) mediators who elicit solutions from parties in conflict, and
(ii) mediators who offer opinions and solutions to the parties in conflict.
Mediator Eliciting Solutions from Parties in Conflict
This “eliciting” characterization refers to mediators who:
–ask parties what solutions they would suggest
–summarize the solutions being considered
–check in with parties to see how they think these ideas might work for their conflict circumstances
Parties in conflict who work with an “eliciting” mediator tend to give positive reports on:
–listening and understanding each other in the mediation
–jointly controlling the outcome
–the other side taking responsibility and apologizing
–changing their own approach to conflict
–the mediator acting properly by not,
–controlling the outcome
–pressuring them into a solution
–preventing issues from coming out
The study finds that an “eliciting” strategy works better than other strategies in,
–achieving settlement agreements between parties in conflict
–avoiding a return to court for agreement enforcement.
Mediator Offering Opinions and Solutions
This characterization refers to mediators who,
–offer their own opinions
–offer their own legal analysis
–advocate for their own solutions
Parties in conflict who work with an “offering” mediator tend to give negative reports, that:
–the agreement does not work well
–they are not satisfied with the outcome
–they would not recommend mediation to others
–they have not changed their own approach to conflict.
A Study Conclusion
Accordingly, the study offers this conclusion:
–Mediators who offer their own opinions and advocate for their own solutions run counter to the goals of self-determination and better understanding between parties in conflict.
Consistent With Experience
As I reflect back upon my own experience as counsel for mediating parties, this finding seems well-founded.
I remember, for example, many years ago when a mediator begins a multi-party mediation with a declaration of how a certain issue should be handled and how an agreement on that issue should be structured.
–The other parties agree. But my client and I do not agree — we view the mediator’s suggestion as a bad idea.
–However, the mediator dismisses our view out-of-hand, ignores our expressions of concern, and pressures us at-the-end to go along with his approach.
I am still irritated — to this day [I’m pressing harder on the keys as I type right now!] — with the memory of that experience. I view the mediator as out-of-line in presenting and pushing his solution without any concern or regard for what we thought [not that I’m bitter about it or anything . . . ].
What do you think about these findings and conclusion of the study?