2017 ABA Report on Research of Mediation Techniques — and the Need for Research on Bankruptcy Mediation

By Donald L. Swanson

On June 12, 2017, the American Bar Association’s Section of Dispute Resolution published its “Report of the Task Force on Research on Mediator Techniques.” Notably, this report makes no reference to any research on bankruptcy mediation — not even a single study.

The following article consists of four parts:

–Summary of the ABA Report;
–Editorial comments on the ABA Report;
–Studies needed on bankruptcy mediation; and
–Next steps.

Summary of the ABA Report

Here’s my overall summary of the conclusions in this Report:

Each mediation technique is effective — except when it isn’t.

The report looks at “existing empirical evidence” on mediator actions and effects, with “the ultimate goals” of (1) “fostering additional empirical research,” and (2) “enhancing mediation quality.”

The report’s “Summary of Findings” includes the following:

–“None of the categories of mediator actions has clear, uniform effects across the studies – that is, none consistently has negative effects, positive effects, or no effects.”

–Thus, the existing research does not “provide clear guidance about which mediator actions will enhance mediation outcomes and which will have detrimental effects.”

–The study proposes a further development of “an expanded and reliable empirical” database.

Here are some specific findings from the report on various types of mediator techniques.

Pressing or directive actions “either increased settlement or had no effect.” But “in some studies these actions were associated with reduced settlement, lower joint goal achievement, and more post-mediation adversarial motions being filed.”

Recommending or proposing a particular settlement, options, solutions, case evaluation or other views “either increased or had no effect on settlement.”

Eliciting disputants’ suggestions or solutions “has the potential to increase settlement and to enhance disputants’ perceptions and relationships, with no reported negative effects.”

Attention to emotions, relationships, or sources of conflict increased, had no effect on, or had the potential to reduce settlement and “either reduced or did not affect post-mediation court actions.”

Building rapport and trust, expressing empathy, praising the disputants, or structuring the issues and agenda “generally either increased settlement or had no effect on settlement.”

Process-focused actions, such as summarizing or reframing or using a facilitative or nondirective style, “had mixed effects on settlement — positive, negative, and no effect.”

Pre-mediation caucus, (1) when “used to establish trust and build” relationships, “ increased settlement and reduced disputants’ post-mediation conflict,” but (2) when “used to get the parties to accept settlement proposals” had a negative or no effect on “settlement and post-mediation conflict.”

Caucus during mediation “increased settlement in labor-management disputes” but “had no effect on settlement in other types of disputes,” and “disputants who spent more time in caucuses were more likely to return to court to file an enforcement action.”

Then, the report provides a “Summary of Findings” that includes this:

The following mediator actions appear to have a greater potential for positive effects than negative effects on both settlement and related outcomes and disputants’ relationships and perceptions of mediation:

–eliciting disputants’ suggestions or solutions;

–giving more attention to disputants’ emotions, relationship, and sources of conflict;

–working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda; and

–holding pre-mediation caucuses focused on establishing trust.

The potential effects of other mediator actions appear more mixed.

Editorial Comments on the ABA Report

  1. Shout-Out. Let’s start with a shout-out to the ABA Task Force for making this effort and for providing value to the study and improvement of mediator performance. If this report can accomplish its goal of “fostering additional empirical research,” it’s effects will be far-reaching. And if future research could focus on bankruptcy mediation, that would be fabulous!!

  2.  Frustration. The report is frustrating in that it provides little definitive guidance on what actually works and what doesn’t. If you are a fan of any particular mediation technique, you’ll find support in this report, and if you disapprove of any particular technique, you’ll also find support in this report — regardless of what the techniques might be.

  3.  Assumption. One apparent assumption of the task force is that technique matters. How a mediator uses a technique, I suggest, is more important than the technique itself. It’s sort of like dealing with sales people: the good ones get to “yes” without buyers perceiving a use of sales techniques, while techniques are obvious with the less-skilled, who rarely get to “yes.” Similarly, mediator techniques are available to every mediator to use as is needed and appropriate, but it’s the skill and judgment of the mediator on whether, when and how to use each technique that makes the difference.

  4.  Generalizations. The essence of the Task Force’s effort is to group all kinds of mediation techniques into a few broad categories. So it’s not surprising that the results of the report are imprecise and inconclusive.

  5.  Particularization. What I find fascinating and most helpful in the report is the detail from particular studies provided in footnotes. For example:

–Footnote 1 on page 15 says, “Another factor, disputant stubbornness and lack of movement, led mediators to press more and also resulted in fewer settlements.”

–Footnote 2 on page 15 says, “The highest settlement rate for the ‘pressing’ style was seen when mediators told disputants at the start of mediation they would use that style and in fact did use it.”

–Footnote 15 on page 18 says, “The apparent difference in settlement rates when mediators did versus did not try to diffuse unrealistic expectations was fairly large (a difference of 19% in Settlement Week and 25% in pretrial mediation).”

–Footnote 27 on page 19 says, “The negative correlations between the ‘evaluative’ style and fairness of the process and mediator were statistically significant for all disputants and for plaintiffs alone, but not for defendants alone.”

–Footnote 49 on page 23 says, “The apparent difference in settlement rates when mediators did versus did not suggest solutions was large in Settlement Week mediation with attorney-mediators (a difference of 34%), but was small and likely not a ‘true’ difference in pretrial mediation with judges (6%).”

–Footnote 52 on page 24 says, “There was a statistically significant interaction of the ‘substantive/face-saving’ style with the level of ‘interparty hostility’ such that this style was more strongly related to ‘general settlement’ when hostility was high than when it was low.”

  6.  Tension and Disconnect. The report highlights one area of tension and disconnect between a common mediator training theme and attorney expectations: “evaluating” the case. The common and often-emphatic training position is that mediators should not be evaluating or assessing the merits of the case because that compromises neutrality. However, disputing attorneys continue to expect and demand evaluative input from their mediators. Here is an illustration of attorney expectations from two separate studies referenced in the report:

–Attorneys in general civil cases thought the mediation process was more fair when mediators engaged in each of the following actions than when they did not: suggested possible settlement options, assisted the parties in evaluating the case, or assisted the parties in evaluating the value of the case.

–When mediators assessed the case, attorneys in one court were less satisfied with the mediation for their client, but there was no effect in three other courts.

Here’s hoping that follow-up empirical studies will focus heavily on the “evaluating” disconnect described above and provide guidance on what good practices might look like in this area. Here are a couple of thoughts on this area:

–My belief and prediction is that a close examination of successful mediators who are perceived as providing helpful evaluations and assessments are, in actuality, practicing their craft in a neutral sort of way.

–I’ve always been curious about this: When a mediator provides a clear and direct evaluation of the merits of the case, and the case proceeds to trial, how accurate did the mediator’s evaluation prove to be?

STUDIES ARE NEEDED ON BANKRUPTCY MEDIATION

Yes: The use of all caps and bold face in the preceding line is intended as the equivalent of yelling. We need empirical data on bankruptcy mediation!!

There are lots of empirical studies on mediation in many types of contexts and in many areas of dispute. But there are precious few, if any, empirical studies on bankruptcy mediation.

The ABI Task Force Report document itself reveals the dearth of empirical studies on bankruptcy mediation:

–Out of 69 pages of small-print text, the word “bankruptcy” appears only once; and

–that appearance is in “Appendix B,” which is the “Template Used to Record Information from Studies”;

–such appearance is on page 68 in “Q17,” which is where the Task Force would record the “Dispute Type” in question; so,

–the absence of any other use of the word bankrupt or bankruptcy in the entire report tells all there is to know about the lack of empirical data on bankruptcy mediation.

Next Steps?

Does anyone have any ideas or information on how we might pursue a response to this need for empirical studies on bankruptcy mediation?

–Should bankruptcy mediators volunteer for bankruptcy mediation studies?

–Should bankruptcy mediators make a formal statement to the ABA Task Force about this need?

–What else might we do?

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

Note:  This article was originally published in the Mediation Committee Newsletter of the American Bankruptcy Institute on December 1, 2017..