A Study Of Four Mediator Strategies And Their Effects

By: Donald L Swanson

A recent research project measures the effects (both short and long term) of four mediator strategies on party attitudes and outcomes. [Fn. 1]

What follows is a summary of the project’s findings on these mediator strategies:

1. Eliciting Participant Solutions;
2. Neutral Offering Solutions;
3. Reflecting; and
4. Caucus Overuse.

Eliciting Participant Solutions

The Eliciting Participant Solutions strategy asks participants for their ideas and solutions, has the parties engage in brainstorming, summarizes solutions offered by the parties, and explores with the parties whether and how their ideas might work.  It’s a form of joint problem solving between the parties.

–Short Term

In the short term, Eliciting Participant Solutions effects include party reports of:

• listening and understanding each other, jointly controlling the outcome, taking responsibility and apologizing;
• the mediator NOT trying to control the outcome, pressure into a solution, or prevent issues from coming out; and
• the mediator helping the parties reach a settlement during the mediation session.

–Long Term

Over the long term, Eliciting Participant Solutions effects include party reports of:

• changing their approach to conflict;
• improving their relationship; and
• lowering prospects of returning to court for enforcement.

In other words, the Eliciting Participant Solutions strategy works well!

Mediator Offering Opinions and Solutions

In the Mediator Offering Opinions and Solutions strategy (“Opinions and Solutions”), mediators offer their own opinions and advocate for their own solution ideas.

–Short Term

Opinions and Solutions do not have any statistically significant effects in the short term. 

–Long Term

But over the long term, Opinions and Solutions effects include party reports that:

• the outcome is NOT working;
• they are NOT satisfied with the outcome;
• they will NOT recommend mediation; and
• they have NOT changed their approach to conflict.

In other words, the Opinions and Solutions strategy doesn’t work so well.

Reflecting

Reflecting is a type of empathic listening, in which the mediator summarizes or restates back to the parties what they have expressed, with a focus on their emotions and underlying interests.

–Short Term

In the short term, Reflecting effects include party reports of:

• other party taking responsibility and apologizing;
• an increase in self-efficacy (the ability to talk and make a difference);
• an increased sense that the court cares, even without a settlement during mediation;
• an increased sense of voice and confirmation of being heard; and
• procedural justice.

–Long Term

Reflecting does not have any statistically significant effects over the long term.

In other words, within the mediation session, Reflecting works well. When one party hears the opponent’s perspective from a third party, for example, defensiveness decreases.

Caucus Overuse

Mediators use a Caucus strategy when they meet separately-and-privately with each party.  Caucus Overuse occurs when more time is spent in Caucus than in joint session.

The effects of Caucus Overuse are all negative—and that’s true for both short term and long term effects.

–Short Term

In the short term, Caucus Overuse effects include party reports of:

• a mediator-controlled outcome—a pressured solution that prevents issues from coming out;
• dissatisfaction with the mediation process and outcome;
• issues being resolved unfairly or with an outcome that cannot be implemented;
• a sense of powerlessness;
• a belief that conflict is negative; and
• a desire to better understand the other party.

–Long Term

Over the long term, Caucus Overuse effects include party reports of:

• dissatisfaction with self-efficacy;
• dissatisfaction with consideration for the other person;
• dissatisfaction with whether the court cares; and
• a greater likelihood of returning to court in the next twelve months for enforcement.

In other words, Caucus Overuse does not work well.  Here’s why:

• Time in caucus directs participant engagement toward the mediator and away from the other party;
• When separated, parties feel less invested in finding a solution and view resolution as the mediator’s responsibility; and
• “Secret” conversations are unsettling to litigants waiting alone in a room, wondering what is being said.

Note: the negative Caucus findings are about Caucus Overuse—not that Caucus in itself is detrimental.

Conclusion

Here’s a “thank you” to the researchers and authors of this study for their efforts, their findings, and their insights!

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Footnote 1.  The study is by Lorig Charkoudian, Deborah Thompson Eisenberg and Jamie Walter, is titled “What Works in Alternative Dispute Resolution? The Impact of Third-Party Neutral Strategies in Small Claims Cases,” and is published in Conflict Resolution Quarterly, as U of Maryland Legal Studies Research Paper No. 2019-11, on October 7, 2019. 

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