Mediating Parties on Their Mediators: Handing Out Reviews

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Handing out reviews — this statue looks like a dove from the front (photo by Marilyn Swanson)

By:  Donald L. Swanson

What do mediating parties say about their mediators?

That’s what Prof. Stephen B. Goldberg and Margaret L. Shaw wanted to know. So, they do a study and report on it back in 2008, as follow-up to a prior study.  And the mediating parties are more-than-happy to hand out reviews.

Prior Study

In the prior study, Prof. Goldberg surveyed 30 experienced and successful mediators to find what they believed made them successful. Survey answers from mediators attributed their success to such factors as, (i) developing rapport (a relationship of understanding, empathy, and trust) with the parties, (ii) honesty and trustworthiness, (iii) creativity in developing solutions, (iv) a sense of humor, and (v) persistence and patience in the mediation effort.

Follow-Up Study and Report

The follow-up survey by Goldberg and Shaw sought a performance review on the mediators.  To do so, they surveyed party representatives (mostly attorneys) who worked with the mediators surveyed in the first study.

Goldberg and Shaw received 216 survey responses to these two questions:

–Thinking back to your most recent mediation with [the named mediator], and any other mediations that you may have had with him/her, what personal qualities, skills, or techniques did [the named mediator] demonstrate that helped move the parties toward settlement?

–How would you account for [the named mediator’s] success as a mediator?

Survey responses to these questions identify the following behaviors as correlating to mediator success.

Gaining Parties’ Confidence

60% of survey responses identify “the mediator’s ability to gain the parties’ confidence” as “correlated to mediator success.” This is the “most frequently cited behavior.”

However, each mediator has his/her own way of gaining confidence—there is no one-right-way. Of survey responses citing this gaining confidence characteristic, some refer to friendliness, others to a sense of empathy. and still others to likability.

Here are some actual survey responses on this point:

• “He is a genuinely nice guy. People like to be around other people whom they like-especially someone you have to spend hours with in a high-stakes situation.”

• “Because of his sincerity and like-ability, he is able to keep people talking when other mediators might lose them.”

• “She demonstrates compassion for the client, which makes the client feel that she is working hard on her behalf and tends to make the client trust her.”

• “His style as a mediator is one of patience and empathy–projecting a sympathetic understanding of the party’s concerns and positions.”

Integrity

53% of survey responses refer to the mediator’s “high integrity,” consisting of “honesty, neutrality, trustworthiness, protection of confidences, etc.”

Smart, Prepared & Knowledgeable

47% of survey responses say that the mediator was “smart, well-prepared, or knew the relevant contract or law.”

Patience and Persistence

35% of survey responses mention the mediator’s patience and persistence. Here are some actual survey responses on this point:

• “Her patience was outstanding. The parties were very far apart: we didn’t give this case a chance for success …. The parties kept insisting, ‘Mediation is not going to resolve this matter.’ However, her patience resulted in a settlement.”

• “Most important … is that he has unlimited tenacity, is indefatigable, is always working, phoning/E-mailing night and day, weekends, from wherever he is and wherever you are in the world.”

• “She never gives up, never. Some mediators will walk out at the end of the day, and say call me if I can help in the future. In contrast, at the end of the day she will get contact numbers and call each lawyer separately, and continue to sort out the problems …. I’ve had many conversations with her at [9:00 p.m. and 10:00 p.m.] to try to settle some element of a case.”

Useful Evaluations

33% of survey responses reference the mediator “providing useful evaluations or reality-testing regarding the likely outcome of the dispute in court or arbitration.” Here are some actual survey responses on this point:

• “She readily identifies–and expresses in a nonconfrontational fashion–the most significant weakness or downside in each party’s position.”

• “I think the first thing that is great … is that he is a retired judge and knows the risks of litigation and is able to communicate those risks to my clients with confidence. For me as an attorney, trying to get people to settle for a reasonable financial offer is incredibly difficult–I could do it all day, but my clients tend to believe his opinions, and glean a firm understanding of the risk of taking a case to litigation and the possibility of spending more money than what you could get in a pretrial settlement.”

A Divergence

This “useful evaluations” characteristic is the one area where responses differed markedly between the survey of mediators and the survey of their mediation participants: (i) “fewer than 10% of the mediators” cited evaluation skills as important, but (ii) 33% of party representatives cited it.

[Editorial Note: This divergence is significant.  It appears that skillful mediators are often perceived as providing substantive guidance to the parties, even when their intention and effort is to maintain a neutral and non-evaluative posture.  Perhaps that’s an important skill for effective mediators?]

Good Questions and Careful Listening

28% of survey responses reference the mediator “asking good questions and listening carefully to responses.” Here is an actual survey response on this point:

• “I think primarily he’s a good listener, which is key for a mediator to be successful. He validates everyone’s position in a way that is not wishy-washy, but is responsive to the concerns of the various constituencies.”

Other

Survey responses also identify the following “skills/attributes”:

• Diplomacy and tact (21%)–“She points out the positive points in each round of negotiation, such that both sides feel they’re winning.”

• Proposing solutions/being creative (19%)–“She’s creative. She thinks outside the box. She hears the problem, listens well, and will push people to create their own resolution.”

• Keeping the parties focused (15%)–“He helped us focus on issues more. He made us ask what we really needed.”

• Being candid/firm as necessary (15%)–“She is very patient and inherently likeable, but she is also very direct when she needs to be,” and, “His straight-talking, frank input makes him one of the most successful mediators we’ve used.”

• Understanding people and/or relational dynamics (13%)–“His insight into people is phenomenal. He knows what buttons to push, when to push them, and how hard”; “Not only does she understand people’s behavior and motives, she also remembers everyone. She scopes out my clients like a good trial lawyer with a jury,” and “He knows the roles of the various parties in the process–clients and attorneys. He knows what our [that is, the lawyers’] needs are, and what our clients needs are. He doesn’t put us down in front of the client.”

• Being calm and/or deliberate (12%)–“Her ability to remain calm and keep the parties calm kept the parties together,” and, “He has a calming and peaceful demeanor. Each client who’s there feels comfortable. He creates a safe zone.

Conclusion

The foregoing are gems of wisdom that all mediators should review and evaluate.

**  If you find this article of value, please feel free to share.  If you’d like to discuss, let me know.

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