“Eliciting Participant Solutions” + “Reflecting” = An Effective Mediator’s Tool (A Study)

A study titled, “What Works,” examines the effects of mediator strategies and behaviors on case outcomes in small claims cases. [Fn. 1] The study gathers information on both the short term (immediately after the mediation occurs) and long term (up to twelve months later) effects of mediator strategies.

The study uses data from 269 individuals in 116 cases, of which 44% are plaintiffs, 49% are defendants, and 1% are both (due to counterclaims).

A Conclusion

Here’s an intriguing conclusion from the study:

The mediator strategy most positively associated with reaching an agreement is “Eliciting Participant Solutions.”

What follows are some of the study’s specific findings regarding this conclusion.

Eliciting Participant Solutions

In the “eliciting participant solutions” strategy, the mediator (i) asks participants for ideas and solutions and brainstorming, (ii) summarizes the solutions offered by the parties (“reflecting”), and (iii) explores with the parties whether and how those ideas might work for them.

This strategy achieves excellent results, as measured both immediately following the mediation and up to a year later.

–Short Term Effects

In the short-term, this strategy works well. Parties report:

that (i) they listen and understand each other in the mediation session, (ii) they jointly control the outcome, and (ii) the other person takes responsibility; and
that the mediator does not (i) control the outcome, (ii) pressure them into solutions, or (iii) prevent issues from coming out.

–Long Term Effects

This strategy also works well in the long-term. Parties report:

that they (i) have changed their approach to conflict, (ii) are satisfied with the outcome, and (iii) would recommend mediation; and
that they have not returned to court for enforcement action within twelve months and have achieved an outcome that is durable.

–Other Studies

Other studies reach complementary findings about this strategy, such as:

it is a form of joint problem solving between the parties;
it is associated with improved long-term relationships between the parties; and
it is associated with settlements.

“Reflecting”: A Tool for Eliciting Solutions

“Reflecting,” in mediation, is a type of empathic listening:

the mediator summarizes or restates back to the parties what they have expressed; and
the focus is on identifying the parties’ emotions and underlying interests.

In mediation theory, “reflecting” is a relational listening strategy serving these purposes:

to give parties a sense of voice and confirm they have been heard; and
as the mediator reflects one party’s emotion or interest, the other party hears the opponent’s perspective repeated by a neutral.

Results of “reflecting,” from the study, include the parties reporting:

that the other party takes responsibility;
an increase in a sense of self-efficacy (ability to talk and make a difference); and
an increase in a party’s sense, in retrospect, that the court cares about them (from before to after the mediation), even when the parties do not settle.

Conclusion

“Eliciting participant solutions,” when used in conjunction with a “reflecting” approach, is a highly effective mediator’s tool.

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Footnote 1. The study is 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).

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