Study: Offering And Advocating For A Solution Is A Poor Mediator Strategy

By: Donald L Swanson

“Neutral Offering Solutions had long-term negative associations” in mediation.

That’s a finding from a study of small claims mediations, titled “What Works” [Fn. 1]

“Neutral Offering Solutions” refers to a mediator offering ideas for solutions and then advocating for those ideas.

Study’s Conclusion

In a study of “what works,” the conclusion is that Neutral Offering Solutions doesn’t.

The study looks at long-term effects (i.e., within 12 months after the mediation) of various mediator strategies. 

When a mediator offers and advocates for a particular solution, the study’s participants report these long-term effects:

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

Namely, a mediator offering and advocating a particular solution is less likely to achieve a durable outcome.

The Problem

I’d argue that the problem is not with a mediator offering solutions: every mediator in every mediation ought to be thinking creatively and participating in the brainstorming effort. 

It’s the combination of offering and advocating for a solution that’s the problem.

Here’s why: the solution has got to be something the parties want and recognize as in their own interest. Either the parties recognize a solution as in their best interest . . . or they don’t. A mediator advocating for a solution, that any party doesn’t want, won’t change what that party wants.

I’ve represented parties in mediation where the mediator comes up with a strategy my client doesn’t want . . . and then advocates for it.  Here’s something I know about such a thing: I don’t like it! 

An Analogy

Here’s an analogy to illustrate the problem: representing a business debtor in a bankruptcy reorganization effort.

Representing such a debtor is tricky.  It requires the development of a reorganization strategy that fulfills these two important requirements:

• the strategy is something the debtor and its owners are willing to adopt—and are highly motivated to do so; and
• the strategy will work.

Here’s a common problem: (i) what the debtor and its owners want and are highly motivated to do—won’t work, and (ii) what will work—the debtor and its owners don’t want to do.

An Example from Experience

A common example is representing a farmer in a Chapter 12 bankruptcy:

• the farmer wants, more than anything else, to keep the land–all of it; but
• the land won’t produce enough income to fund the requirements of a Chapter 12 plan for keeping the land.

I’ve tried, many times, to deal with this problem by offering partial-liquidation solutions.  And I’ve often advocated, with the farmer, for that solution.

Here’s what I’ve learned the hard way: if the farmer’s primary goal is to keep all the land, arguing for a different solution is a waste of time and energy.  That’s because the sale of land, for such a farmer, will never happen . . . ever.

And even if that farmer, in response to my advocacy, begrudgingly says “ok” to the sale of land in a Chapter 12 plan, in the end . . . the sale will never happen. 

That’s not the fault of the farmer—it’s mine.  I should have recognized, from the beginning, that the farmer’s reluctance to sell land cannot be overcome by my advocacy. 

And even if my advocacy for a partial liquidation of land prevails for a while . . . in the end, my solution will fail.  That’s because the solution isn’t durable—and it never had a chance.

So, here’s my hard-knocks rule on the matter:

• What I should have done, in such circumstances, is decline to represent the farmer in bankruptcy; and
• I should have recognized that my solution, which the debtor did not want, would not work.

Conclusion

A mediator offering and advocating for a solution is like yours truly offering and advocating for a partial liquidation strategy with a bankruptcy debtor who did not want any such thing.

Such a strategy, over the long haul, is not durable and is likely bound for failure.

—————————

Footnote 1.  This is a conclusion from a study titled, “What Works in Alternative Dispute Resolution?  The Impact of Third-Party Neutral Strategies in Small Claims Cases.”  Its authors are Lorig Charkoudian, Debtorah T. Eisenberg & Jamie L. Walter, and it is published as University of Maryland Legal Studies Research Paper No. 2019-11 (10/07/2019). 

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