Empirical Studies and the Mediator’s Proposal — A Portal to Decision

By: Donald L. Swanson

Let’s try combining a couple empirical studies on unrelated matters to support the following proposition:

–The “mediator’s proposal,” as a form of choice delegation, can help parties reach settlement.  The proposal becomes a portal or entryway to decision.

First Study: Delegating Difficult Choices

The first study is titled, “Delegating Decisions: Recruiting Others to Make Difficult Choices” [Fn. 1]. Here’s what this study shows about the human tendency to delegate difficult decisions to others.

1. Choice Avoidance. Choice difficulty often leads to a variety of forms of choice avoidance. For example, people often:

• Postpone a difficult decision, either by gathering more information, seeking additional alternatives, or simply mulling it over;
• Avoid a difficult decision by sticking with the status quo—i.e., by doing nothing at all.

 2. Choice Delegation. One way to avoid choosing is to delegate choice responsibility to someone else. Delegation differs from avoidance as follows:

• Delegation relinquishes control to someone else — avoidance doesn’t;
• Delegation removes the fear of being “at fault” for a poor decision — avoidance doesn’t;
• Delegation adds value when the delegatee is an expert — avoidance doesn’t; and
• Delegation overcomes paralysis when a choice must be made — avoidance doesn’t.

In the medical arena, for example, studies show that patients afraid of making a “wrong” decision often prefer that doctors make the treatment decisions for them.

A conclusion from the first study is this:

–As the difficulty of making a choice increases, people are more likely to delegate the decision to another person.

Second Study: How a Mediator’s Proposal Can Help

The second study is titled, ”Inside the Caucus: An Empirical Analysis of Mediation from Within” [Fn. 2]. Here’s what this study shows about the effective use of a “mediator’s proposal.”

A mediator’s proposal is a “very common closing device” for many mediators—and can be highly effective. One of the authors of this study, Lisa Klerman, has mediated more than 400 case. She has used a mediator’s proposal frequently in her practice, resulting in many settlements.

Ms. Klerman reports that her success with the mediator’s proposal is a function of how she uses it:

• The only time she uses it is when the parties’ positions are getting close and she believes a mediator’s proposal can bridge the remaining gap to settlement;
• She only makes a mediator’s proposal when she believes both sides will accept it, based on her experience and judgment from mediating many cases;
• “The parties then respond confidentially to her”; and
• If only one party “accepts” the mediator’s proposal, the rejecting party “never finds out that the other side accepted it.”

A mediator’s proposal can actually “be harmful,” the study reports, when “the parties are so far apart that a mediator’s proposal would be unlikely to succeed.”

A conclusion from the second study is this:

–When the positions of mediating parties are starting to get close, a mediator’s proposal can help the parties reach agreement.

Putting the Two Studies Together—A Theory

So, in combining the results of the two studies, we come up with this theory:

1. People are inclined to delegate responsibility for making difficult choices to someone else—especially to an expert; so,
2. If a mediator senses the parties are close to settlement but can’t quite get there; then
3. A mediator can fill the role of an expert delegatee by offering a mediator’s proposal.

Conclusion

What do you think about this theory of the mediator’s proposal being a portal to decision, based on choice delegation inclinations?
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Footnote 1. This “Delegating Decisions” study is by two professors, (i) Mary Steffel, assistant professor of marketing at the D’Amore-McKim School of Business at Northeastern University of Boston, MA 02115, and (ii) Elanor F. Williams, assistant professor of marketing at the Kelley School of Business at Indiana University of Bloomington, IN. Their study report is linked above and is published at Journal of Consumer Research, Volume 44, Issue 5, February 2018, at 1015-1032.

Footnote 2. “Inside the Caucus: An Empirical Analysis of Mediation from Within” is the report of a study by Professor of Law & History, USC Law School, Daniel Klerman, and by Clinical Professor of Law and Director, Mediation Clinic, USC Law School, Lisa Klerman, is published in 12 Journal of Empirical Legal Studies, 686-715 (Dec. 2015), and is linked above.

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