“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?
MEDIATBANKRY 
While this study confirms popular mediation theory, there are two areas of concern: the lack of randomization and the combination of offering solutions and advocating for them. The study states that it is observational in nature; what the mediators did in the moment was reported. The study discusses this limitation:
“While factor analysis allows us to identify the sets of strategies used together and the subsequently created variables allow us to measure the impact of those sets of strategies, it is important to understand that these sets of strategies are not necessarily identifying types of ADR practitioners or ADR models. One also cannot assume that one ADR practitioner used only one set of strategies in any given ADR session. So while we can say that various strategies have differing impacts, it is with the knowledge that ADR practitioners may have used a variety of strategies in the same ADR session.” (p. 28)
This lack of randomization could theoretically indicate that combative parties lead the mediator to adopt a more evaluative stance and, since they were more combative in the beginning they remained so.
The second trouble spot is attaching offering solutions to advocating for them. Mediators are resource enhancers and are familiar with the environment in which they work. I am reminded of a mediation where I was representing a discharged party in an employment case. The party needed to get to a certain amount of cash in their pocket before they could take the deal. The employer was only able to offer a lesser amount. When it looked as if the parties were unable to settle, the mediator suggested paying a portion of the money as damages which are not taxed. The result was both parties were able to meet their underlying interests. The mediator, using his understanding of the system, expanded the options for the parties.
This study offers useful insight into what is likely the case, thank you for posting it. I would have liked to see the behaviours broken down even further. Do you think research that includes randomization of method of ADR is ethical? practical?
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Thanks for your excellent insights on this!
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Mediators should always assist with options without compromising their neutrality.
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I have a couple concerns about this approach. The first is that one need not be an attorney to practice the fine art of mediation in this state. However, one must be an attorney to provide legal analysis of a particular situation, including but not limited to opinions as to possible outcomes in front of a specific judge and applying the law to the specifics of the case at hand and opining on the possible outcomes. If the approach cannot be applied by all who are empowered to mediate, does it make for a reasonable methodology? My (non-legal) opinion is that it does not.
Another point is that this approach sounds like “get the parties to agreement no matter what it takes.” I would argue this attitude has no place in facilitative mediation. I do not see how it is any better than a judgement forced on the parties by an outside source, be it a judge or any other trier of fact. One of the cornerstones of mediation is the parties’ right to self-determination. If we surrender that in the name of “agreement”, we are selling out our clients and selling our own souls to the devil.
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I agree that mediators should be working with the parties to arrive at their own solutions. The outcome tends to be sustainable with the effect of empowering parties to have the capacity of resolving their disputes. In addition maintaining neutrality is one of the major pillars of mediation.
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I work with couples in divorce negotiations. If parties are “stuck”, I may present several creative options that I have seen work for couples in the past. I certainly leave the decision up to the clients, but they always seem to appreciate some “outside of the box” solutions and manage to make a version of those proposed work for them.
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