A Study of Mediation Transcripts and Recordings

By: Donald L. Swanson

Studying mediation is hard to do—because of confidentiality concerns.

One study from decades past, however, gets around the problem. It focuses on a course in the UCLA mediation clinic in which students act as mediators. The study looks at transcripts and recordings of mediation sessions (made with consents of the parties for academic purposes) in thirty-six cases. [Fn. 1]

And the findings are fascinating. What follows are examples of those findings.

Types of Parties

The study finds that settlement is considerably more difficult with institutional parties (such as governmental agencies, insurance companies or very large landlords) because of an unwilling to look at the specifics of individual cases – they tend, instead, to treat each case as a single example of a larger issue.

The study also finds that repeat player lawyer-negotiators are slightly more likely to treat the mediation as a pro forma exercise, sometimes even coming dangerously close to bringing only one offer and failing to move.

Contrary Purposes Within Each Side

In some cases, the study finds, lawyers and parties actually work at contrary purposes. For example, in a dissolved but lengthy business partnership, the lawyers and mediator work on relationship and money issues, while the parties align themselves in perpetuating their conflicts and refusing to settle.  The case demonstrates that, if parties want something badly enough (e.g., vengeance and retribution), they can defeat the collective efforts of their own lawyers and a mediator.

Working Together

In other cases, the study finds, attorneys and parties work together toward creative solutions and effective communications. For example:

• In landlord/tenant disputes, landlords and their lawyers look for creative conditions to continue the tenancies, including restructuring back rent to coincide with repairs to property or with finding a new apartment;
• Lawyers use a single failed payment to restructure a thirty years business relationship between their warring clients; and
• Landlord offers to print an apology to other tenants in the building, where tenant felt embarrassed by being sued.

Such individualized ‘solutions’ demonstrate the best of mediation and productive problem-solving.

Wrong Purposes

The study reveals that many parties and attorneys act with wrong purposes:

• Some lawyers and parties view the mediation process as another stage in litigation manipulation to achieve delay or other wrongful goals;
• For others, crucial factors appear to be, (i) peace at any price, or (ii) a desire to leave the courthouse;
• Some lawyers and claims adjustors come to mediation sessions with fixed negotiation offers and refuse to change, even after hearing new facts or needs; and
• Some lawyers and parties play ‘hardball’ because of institutional policies or their own personalities.

“Most Troublesome Observation”

“Our most troubling observation,” the study reports, is not that lawyers or parties are “likely to engage in unproductive, competitive or distributional behaviours.”

Instead, it’s that parties and lawyers “seem to exhibit almost predetermined tendencies” toward the disputes they face. It seems as if:

• “a mind-set about how to negotiate” is “the best predictor of negotiation behavior”; and
• “personality plays a central role in negotiation behavior.”

Mediator Styles

One team of lawyers reports a surprising observation:

• that the student-mediators tended to facilitate settlements and encourage brainstorming — this is unusual in their own experience, the lawyers said.

The same lawyer team also reports that a more common mediator style, in their experience is this:

• that professional-mediators tend to suggest solutions in mandatory/exclusive settlement caucuses.

Study’s Conclusions

The study’s conclusions include:

• “Personality may ultimately be more salient in understanding negotiation behaviour than role or professional orientation”;
• There are “a minority of lawyers and parties” who “willingly demonstrated openness to a new process”; and
• An orientation of openness and willingness to learn “provides the justification for claims” that “mediation can serve an educative and transformative function.”

Here are some of the study’s “sad” conclusions:

• There may be an empirical reality to the polarized models of negotiation, seeing in each dispute an opportunity to “get mine”; and
• When people are lazy about negotiations (i.e., expecting to have low intensity contacts in mediation and to compromise in the middle), the compromised middle may not accurately reflect what the parties need or are entitled to achieve.

Implications for Education

When the students mediate disputes, the study observes, it causes them to become more critical of their own negotiation work. As a result, they began asking how they might:

• facilitate better solutions;
• go beyond low intensity contacts and compromising in the middle; and
• educate the sides about deeper considerations of goals, needs, interests and justice concerns.

Additionally, by seeing unproductive and inefficient behaviors of others, the students can:

• see how to intervene and re-channel conflict productively;
• understand the complexity of their own negotiation behaviors;
• see the costs of conformity, as they struggled to facilitate better solutions; and
• learn how to avoid destructive or inefficient patterns they observed.

For the author of the UCLA report, the promise of education about negotiation and dispute resolution is this:

• most negotiation is low intensity and potentially quite inefficient, not to mention unpleasant; but
• even when the data from studies are less than “what we hope to find,” such data are “extremely useful for the learning — both as a check on reality and as a motivator for the future.”

Conclusion

The study observes:

“The clinic as social science laboratory” helps us understand how lawyering is conducted, allows us to test theories, and engages us in trying to improve the lawyers we produce.

Here’s a thanks to the students, teachers and author for the utilization of their “social science laboratory” in doing just that!

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Footnote 1. The study is, “Lawyer Negotiations: Theories and Realities—What We Learn From Mediation,” by Carrie Menkel-Meadow. Published in Vol. 56(3), The Modern Law Review 361 (May 1993).

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