Mediators as Persuaders?

 

By: Donald L. Swanson

For everyone who believes that mediators should facilitate and not evaluate, you’re gonna’ love this one – or maybe not!

The study report is, “Changing Minds: The Work of Mediators and Empirical Studies of Persuasion,” 28 Ohio St. J. on Disp. Resol. 263 (2013).  It’s prepared by these two professors:

–James H. Stark, Professor of Law and Director of Mediation Clinic at University of Connecticut; and

–Douglas N. Frenkel, Professor of Law and Mediation Clinic head at the University of Pennsylvania.

The two Professors describe a mediator’s role and the purpose of their paper like this:

“[N]eutrals inevitably bring some degree of influence to bear on” the mediating parties. This comes from:

–their “presence in the mediation room,”
–“the questions they ask or don’t ask,”
–“the statements they make,”
–“the agenda they help to create.”

All of such things “can and do affect how the parties communicate and the results they achieve.”

But “it is the deliberate exercise of influence that is the hallmark of persuasion, and it is on persuasion that we focus here.”

[Bold face is added in this article for emphasis, but italics are in the original.]

Role of a Persuader

A portion of the Professors’ paper focuses on a mediator’s “direct attempts at persuasion” through “persuasive messages” and analyzes “existing research” on the subject.

–A Hypothetical

The Professors start with mediation of a hypothetical claim for wrongful termination of employment. One issue in the mediation is whether the following evidence can be excluded on technical grounds: that the employee publicly “disrespected” her supervisors after missing out on a promotion. The mediator believes the employee’s inadmissible-evidence view on this issue is unrealistic and wants to discuss this issue with the employee and her attorney in caucus.

Then the Professors analyze how the mediator might approach the issue in the most-persuasive manner.

–Four Discussion Options

The Professors give four options (see pages 304-06) on how “you” (the mediator) might approach the discussion. Here are the four options:

A. “A one-sided statement of your views, with reasons briefly stated.” You might say:

–“The standard of relevance is . . . very broad. My opinion . . . is that this episode is relevant and admissible to show ______.”

B. “A two-sided message, which acknowledges arguments on both sides of the question, but does not take a position between them.” You might say:

–“There is no doubt that the inconsistency . . . . raises questions, and . . . it’s possible that [inadmissibility will result]. But it’s also quite possible that [an opposite result will occur].”

C. “A two-sided message, which acknowledges arguments on both sides of the question, and explains briefly why one side is more likely to prevail than another.” You might say:

–“There is no doubt that the inconsistency . . . raises questions, and . . . it’s possible that a hearing officer would [exclude the evidence]. But . . . I think that is extremely unlikely [because ______ ].”

D. “A two-sided message, which gives detailed and explicit reasons why one side is more likely to prevail than another, and also provides explicit conclusions that flow therefrom.” You might say:

–“There is no doubt that the inconsistency . . . raises questions, and . . . it’s possible that [inadmissibility will result]. But . . . I think that is extremely unlikely [because ______ ]. And, even if their statements are viewed as inconsistent, the United States Supreme Court has recognized [discuss opinion]. I think the whole embarrassing episode will come in.”

–The Most Persuasive Option

The Professors then provide this conclusion: “if you chose option D, empirical studies tell us you are correct.” And they elaborate:

–“messages that present two (or more) sides to an issue or question” and also “present reasons why one side” is better than the other(s) are “more persuasive” than other types of messages.

–Additionally, “arguments that state explicit reasons for a conclusion and describe those conclusions in detail” are “more persuasive” than arguments “with implicit reasons and/or implicit (or no) conclusions.”

A Question, Conclusions, and Two Mediation Applications

The Professors, in their paper, go on to provide the following question, conclusions and mediation applications.

—Question:

“What applicability might these findings have to the work of mediators?”

–Conclusions:

(i) “Studies tend to show that many disputants want and expect feedback and evaluation from their mediators”; and

(ii) Such findings are significant for mediators, “who, for a variety of reasons, may tend to ‘pull their punches’ in delivering messages or making suggestions.”

—First Application: In the “much debated question” over process vs. substantive expertise of a mediator, empirical research shows that a mediator’s “most persuasive message form” is the form that provides “highly detailed and explicit arguments” and an identification of “the source” of conclusions.

This suggests, the Professors conclude, that “industry knowledge” is a key element for mediator success, ”at least when the parties want” substantive “feedback” from the mediator.

—Second Application: As to the “longstanding theoretical debates about facilitative versus evaluative mediation,” the Professors offer the following analysis.

“In most professional advising contexts,” people want “explicitness and directness.” For example, most want doctors and lawyers “to lay out . . . their recommendations, with supporting reasons.”

“In mediation, by contrast, . . . many neutrals . . . avoid explicit or direct efforts at persuasion, often in the name of party self-determination.” They do so, even “when feedback” is “expressly requested by the parties.”

They “hedge their bets” and give “half-baked evaluations” or make “indirect, roundabout” statements, even as to “questions that have clear answers.” They don’t want to be seen “as favoring” one side, or “appearing coercive.”

–Then, the Professors offer this conclusion: “At a minimum,” the empirical research “suggests that such behaviors are suboptimal.”

Conclusion

Facilitative mediators will chafe at the analysis and conclusions of these two Professors. The retorts will begin with something like this:

It’s not the job of a mediator to persuade. The job of a mediator is to help the parties find a self-determined solution; and

The paper prepared by the two Professors is flawed in its underlying assumption that a mediator should be trying to persuade the parties of anything.

And there will be angst and skepticism toward studies showing that many mediating parties “want and expect feedback and evaluation from their mediators.”

This is a tough one!

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