“we were surprised to find that mediators could use assertive strategies to obtain settlements without overly sacrificing disputant satisfaction with the mediation.”
Friendly Persuasion in Civil Case Mediations, by James A. Wall & Suzanne Chan-Serafin, 31(3) Conflict Resolution Quarterly at 285-303 (2014).
The “Friendly Persuasion” article is about a study that tests the validity of this proposition:
That mediator assertiveness produces more agreement but less satisfaction.
Assertive Mediators Get More Agreements
The study confirmed that “pressing and evaluative mediation styles” produce more agreements than a non-assertive style. Here are percentage comparisons from the study:
Non-assertive style: 28% agreement rate;
Pressing style: 57% agreement rate; and
Evaluative style: 69% agreement rate.
Such results are what the study predicted because:
Assertive strategies give disputants realistic perspectives, move them off positions, and push them toward agreement; and
This prediction is supported by the mediation literature.
Assertive Mediators Can Create Satisfied Parties
Here is the study’s finding on party satisfaction:
–Assertive mediators got agreements without upsetting the disputants and without sacrificing disputant satisfaction.
The surprise at such finding, for the study’s authors, is quoted above. Here’s why they were surprised, in their own words:
–We reasoned that disputants would not like to be on the receiving end of an assertive strategy—e.g., they would not like being forced off positions, facing a devil’s advocate, being told to concede, or receiving candid evaluations.
Here is how the authors describe the two assertive styles they studied:
Pressing style—the mediator calls for concessions, expresses disappointment, notes lack of progress, reduces the disputants’ aspirations, and nudges them toward agreement; and
Evaluative style—the mediator analyzes the case in a balanced fashion and points out each side’s strengths and weaknesses.
Four Successful Tactics of Assertive Mediators
Further, the study found that “assertive, effective, satisfying mediators” utilize some or all of the four tactics described below.
1. They Established Legitimacy
Assertive mediators, from the beginning and throughout the mediation, made statements that established their legitimacy and that of the mediation, indicating that the mediator was competent, in charge, and would be effective in the mediation.
These legitimizing statements were comparable to those for rapport building and trust
building in other studies—but were more assertive. Such statements indicated that the mediator was competent, in charge, and would be effective in the mediation.
To establish their own legitimacy as mediators: (i) 21 cited experience as mediators, attorneys, or judges, and (ii) 19 defined their role as an impartial neutral who would not take sides or act as a judge—but would work for and help both sides
2. They Showed Strategic Flexibility
Assertive mediators showed flexibility by shifting styles during the mediation—i.e., they weren’t always assertive.
The study explored flexibility like this:
Evaluating the mediators’ strategies in each round (a round being a session with the plaintiff and the immediate adjacent one with the defendant) and identifying each round as assertive or non-assertive; and
Evaluating each mediation, round by round, to determine if the mediator retained the same strategy or shifted strategy.
The study found that assertive mediators typically shift strategies within a mediation. In the middle segment of the mediations, for example, two general patterns emerged:
Mediators shifted to an assertive strategy when the disputants were not making adequate concessions; and
Mediators shifted back to a non-assertive strategy when the disputants began to cruise toward agreement.
The authors reasoned:
The shift to non-assertive might seem obvious (i.e., there is no need to push a log that is already rolling downhill); but
The shift is also counterintuitive (and opposite to a prediction from reinforcement theory) because the mediators shifted from a strategy that was working to a different one.
3. They Used A Ratchet Approach
Assertive mediators occasionally utilized a ratchet approach, involving these three steps.
• Obtaining numbers from both sides (no on wanted to start)
Initially the mediators collected information and conveyed it back and forth between the parties. Then, the mediators asked for a number from each side.
Quite frequently disputants were loathe to submit an offer. To overcome this, mediators often gave a personal assurance—e.g., (i) promising to present an opening offer as “Monopoly Money,” (ii) telling both sides that initial offers merely initiated the mediation process and were of no importance, or (iii) explaining that, since both sides had differing viewpoints and would never agree, the parties need to talk about dollars more than their views.
• Focusing on the bargaining range
Assertive mediators, at some point, decided to advance to a numbers-only negotiation (i.e., no discussion of issues), forcing the disputants to concentrate on a bargaining range. Otherwise, the mediation would bog down in arguments that no one would win.
To do this, assertive mediators used such statements as: “It’s time to go to the numbers game, because the other side came to settle,” or “Since we have discussed all issues, it’s time to move to money,” or “Instead of getting into endless details, let’s turn to money,” or “Discussion of these issues is causing emotional issues; therefore, let’s focus on money only.”
• The close
Assertive mediators approached the close in a variety of ways. Here are a couple examples:
In a medical malpractice case against a hospital, the mediator (working between bottom lines of $60,000 and $27,500) suggested an agreement of $40,000, which he said would give the plaintiff adequate funds to sue the physician involved; and
In an automobile accident where the bottom lines were $38,000 and $25,000, the mediator argued that the medical bills were $20,000, pain and suffering in that court were usually twice the medicals (i.e., $40,000), for a $60,000 total—and since a trial outcome could go either way or find plaintiff equally responsible, the parties should settle at half: $30,000.
4. They Used Aspiration-Reduction Maneuvers to Reduced Disputants’ Goals
Assertive mediators knew that disputants’ high aspirations motivated them to make high demands that irritate their opponent. So the mediators worked at, (i) reducing each side’s evaluation of its own case, (ii) enhancing the perceived strength of the opponent’s case, or (iii) lowering the expected payoffs at trial.
To do so, these mediators tactfully used objective information (e.g., “The state law will hold both parties responsible for the damages”) and evaluations (e.g., “There is no liability in this case”).
[Editorial Comment: Here’s guessing the “tactfully” part of all this is extremely important—that the successful / assertive mediators had high levels of skill in dealing with people and managing conflict.]
Assertive mediators also tended to flank disputants’ assertions rather than confront or contradict them. For example:
If a plaintiff believed her personal injury case is strong, the mediator doesn’t contend it’s weak; and
Instead, the mediator notes that trial would be held in a court notorious for low personal injury rewards.
Such tactics helped disputants understand the case, forced them to question some of their own contentions, and enabled them to understand how the opponent evaluated the case.
Disputants’ Positive Responses to Aspiration-Reducing Tactics
The authors of the study assumed that disputants’ responses to aspiration-reducing tactics would be negative—that disputants would not like to have their cases disparaged, their opponent’s case touted, or their prospects at trial characterized as risky and costly.
The data, however, revealed that few disputants responded negatively to such tactics: only 6% of responses to the “weaken case” tactic were negative, only 9% of responses to the “strengthen opponent” tactic were negative, and only 6% of responses to the “trial risk/cost” tactic were negative.
The data also showed that disputants, instead of responding negatively, chose to posture: i.e., to assert a strong position, promote weaknesses in the opponent’s case, criticize the opponent, or delineate their own trial advantage. Specifically, disputants postured 47% of the time when mediators tried to weaken a disputant’s case, postured 44% of the time when mediators tried to strengthen the opponent’s case, and postured 43% of the time when mediators noted the risks or costs of trial.
Why was there such a low level of annoyance? Here are some of the authors’ suggestions:
One explanation focuses on the legitimacy established at the beginning—e.g., “Given my ten years as a judge and overseeing cases like this, I can tell you that you won’t get that amount from a jury”;
Another is that mediators frequently cite objective information from past cases to show that a demand is too high or an offer too low;
Diplomatic action explains the “predominant” tactic—for mediators to flank the disputants’ self-enhancements rather than confront them directly; and
Some mediators, instead of claiming an opponent had a strong case, simply reported the opponent’s claim.
The Study
–Its Process:
The study’s authors observed one hundred civil case mediations and coded the mediators’ strategies as pressing (the mediators attempted to move disputants off current positions), evaluative (mediators analyzed the cases in a balanced manner), or non-assertive (the mediators did not evaluate or attempt to move either side off positions).
At the conclusion of each mediation, the authors recorded whether there was an agreement and had the disputants respond to this question:
“My overall satisfaction with the mediation process/procedures is (circle the appropriate number): 1 = very low, 2 = low, 3 = somewhat low, 4 = neutral, 5 = somewhat high, 6 = high, and 7 = very high.”
–Its Conclusion
Taken as a whole, their data indicated that many mediators were assertive and obtained agreements without unduly irking the disputants—i.e., they persuaded in a friendly manner. How could they do this?
Another study suggests that mediator style does not explain all mediation outcomes; and
Various “competent” mediator behaviors produce desired outcomes.
Conclusion
The findings of this study will irritate purists who insist on a total absence of pressure and evaluation from the mediator.
Nevertheless, the efforts and findings of the study’s authors argue against a doctrinaire adherence to theoretical tenets.
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