Is Agreement the Gold Standard for Mediation Success?


by Alan E. Gross

June 2013

Alan E. Gross

Perhaps because mediated agreements, especially written ones, are tangible and easily quantified, they have long served as a popular measure of mediation success and mediator competence.  Indeed, a number of mediation providers require applicants to estimate the percentage of agreements they have obtained to qualify for their rosters.

However, the agreement criterion for measuring success and competency has not escaped criticism.   Transformative practitioners, who generally “follow their parties,” not only do not push for agreement, but they do not even work within a problem-solving framework.  Many facilitative and a few evaluative mediators also reject the agreement criterion. Nonetheless, the parties are usually satisfied when they leave a session with an agreement that potentially resolves the conflict that brought them there, especially when they have dodged expensive and time consuming litigation, or emotional and challenging relationship situations.

And many mediators enjoy observing their parties leave the mediation table with a mutual and voluntary accord that can lighten the burden of a conflict, and sometimes can repair an important relationship.  But as one mediator recently blogged, “ mediation is about the parties and NOT about boosting mediator egos.” Those of us who place “self-determination” at the top of our value list would hardly disagree, but outcomes are not zero-sum between parties and mediators.   There is no rule or disadvantage that prevents a mediator from also basking in an outcome that satisfies all parties.  This kind of success is one of the reinforcements that keeps mediators, especially volunteers, at the table facilitating dialog and increasing peaceful communication.  

The seeming paradox between recognizing that mediation success is often much broader than simply reaching agreement, and the frequent use of “agreement criterion” as the sole measure of success is starkly illustrated by Robert Creo (2012) who counts among his successes “the numerous failures of unsettled cases.  “My success comes from knowing that I have offered the participants the highest level of engagement, authenticity, transparency and creativity….” (Creo p. 187).  However Creo also recalls discussing with colleagues the “mediator high” that often accompanies conflict resolution – and he even light-heartedly considers running a victory lap around the table as the parties sign an agreement!  Similarly, William Shelby (2012) notes that criteria for gauging success in mediation are mostly qualitative based upon the mediator’s professional behavior such as maintaining neutrality, assisting disputants to understand each other, and providing a safe environment.

However, the fact that many parties are pleased when they reach agreements, and because mediators may also benefit psychologically, is not sufficient justification for agreement-pushing.  Although more directive mediators may suggest, propose and otherwise steer and cajole parties toward a settlement, mediation, as contrasted with arbitration, is defined in part by a process in which only the parties determine whether or not they will reach an agreement.  

A critical mediator role is to insure that the parties are permitted to speak, explain, emote, and in general, to make themselves understood.  Even more importantly, the mediator’s job involves encouraging each party to thoroughly listen and understand the other’s points of view including positions, demands, and underlying interests, concerns, needs, and motives.  This kind of accurate understanding is the bedrock of many forms of mediation.  Probably the most explicit argument for the importance of understanding has been promoted by Jack Himmelstein and Gary Friedman, co-founders of the Center for Understanding in Conflict, in their book Challenging Conflict: Mediation Through Understanding (2009).  However, not all mediators who focus on the importance of understanding follow the specific Himmelstein-Friedman model which, for example, does not practice shuttle diplomacy or caucusing in the belief that understanding is engendered best in joint face-to-face sessions.

On many occasions when the mediator has successfully facilitated a process where parties truly have understood each other, one or all of the parties may not wish to reach an agreement.  Advocates or promoters of the agreement criterion would likely code such a lack of agreement as a failure.  However such results are not necessarily a failure of either the process or of mediator skills.

On the contrary, I argue here that for some conflicts, lack of an agreement can be viewed as a successful and useful outcome. When complete information has been effectively exchanged and understood, failure to reach an agreement may be recognized as the best outcome by all parties.

Some mediation scholars consider a no-agreement result as a logical consequence when the parties have superior BATNAs2—that is when parties believe that they can do better by not coming to an agreement especially with an “adversary” whose interests are perceived as irreconcilable with their own, and when no mutually acceptable settlement is apparent.

An example of a BATNA that might lead a party to resist a mediated agreement is “I have superior evidence or witnesses or arguments, and therefore will definitely prevail at trial”. When such typical BATNAs are offered openly in joint session or caucus, some mediators may attempt to “reality check” them so that the BATNA may be reevaluated and reconsidered.

Typical BATNAs related to estimates of winning at trial can be important elements in whether or not an agreement will be reached.  Here, however, I am focusing on situations where both parties come to realize that the main alternatives of 1) working out a difficult compromise, or 2) continuing to deal with a lingering and difficult problem, are not tolerable.  In a word I am describing conflicts that all parties eventually understand, deem as “intractable”, and recognize that possibilities for positive or acceptable change are negligible. 

Effective communication at a mediation session can easily lead to mutual recognition that a conflict is not resolvable except with huge effort and cost, or not resolvable at all.   In such cases, parties can realize that neither they nor the others are likely to adjust their positions or change their interests.  Some examples of typical and potentially useful outcomes after such a session are changing jobs or careers, moving to a new apartment or city, finding a new roommate, or seeking a separation or divorce.

These kinds of actions that aim to limit or stop interactions among disputing parties may seem drastic, and indeed cessation of a relationship when other alternatives are possible can be viewed as missing an opportunity for a remedy that might have positively retained the relationship.   However, it is clear that in many situations failure to agree, and instead to stop or radically change a relationship can be far superior to reaching a costly agreement or one that is unlikely to be implemented or maintained.   And a decision to make a break with a roommate, spouse, boss, employee, neighbor, or relative can benefit all parties more than continuing to bang heads within a difficult relationship. The decision to end a relationship is especially attractive when a specific issue such as a dispute over a debt or contract brought parties to the mediation table rather than general difficulties in a relationship that parties may have a stake in retaining or improving.3

It should be mentioned that there are situations where, because of limited alternatives, the parties must either continue to work through a dispute or suffer serious continuing consequences.  This is especially true in some international conflicts both between and within states, but it is also sometimes true among family members, co-workers and others who are constrained to stay in a relationship.  In such situations, the serious costs and rewards of staying and moving away obviously must be compared and weighed.

In summary, no agreement in an intractable situation, where the parties choose instead to end the relationship, is not necessarily a negative outcome.   In such cases, the mediation process can clarify options for the parties who may then choose to go their separate ways instead of continuing to fight.  Such a separation alternative might not have been perceived favorably before the parties engaged at mediation and better understood how well or poorly their own interests meshed with those of relevant others.

In order to acknowledge the possibility of no agreement as a positive choice, I have recently added wording like the following to my standard opening statement: “ Usually mediation participants find common ground and reach a voluntary agreement, but even parties who don’t reach an agreement are almost certain to gain a better understanding of the situation that brought them to the table, and the possible options for dealing with it.”

Although this article focuses on whether or not mediation parties reach an agreement as an indicator of the success of the process, other important mediation outcome variables have been proposed and studied (for examples see Wissler (2004).  Aside from agreement percentage, the most common measure of mediation success is participant satisfaction.  Client satisfaction data usually is obtained from exit questionnaires or interviews.  Parties are often asked to respond to items such as “did the mediator treat you fairly?” that are assumed to be components of general satisfaction.  Outcome measures in some studies have also included coding of behavioral observations during sessions, and follow-up contacts to check on compliance with agreements.   And a number of studies have compared participant satisfaction with mediation compared to litigation.  Unfortunately such comparative studies rarely include the random assignment to treatment that is normally required to make strong inferences from the data.  To my knowledge, no studies have yet assessed how the degree of understanding or empathy achieved by parties is related to client satisfaction with the mediation process.

FOOTNOTES

Fn 1. Thanks for helpful comments on earlier drafts to Sarah Davies, Kathy Goodman, Peter Miller, William Shelby, Tom Valenti and Maria Volpe

Fn 2. The acronym MLATNA  (Most Likely Alternative to a Negotiated Agreement) has begun to replace BATNA in many mediation vocabularies.

Fn 3. In rare instances, parties may exit mediation with unresolved issues, but with their relationship retained or restored.  

References:

Creo, R. A. (2012) Failure & Me, Alternatives to the High Cost of Litigation. New York: International Institute for Conflict Prevention and Resolution, 30, 187-188 

Friedman, G. & Himmelstein, J. (2009) Challenging Conflict: Mediation Through Understanding. Chicago: American Bar Association.

Shelby, William (2012) in the Mediators Beyond Borders Discussion Group of Linked-In:
http://www.linkedin.com/groups/WHAT-PARAMETERS-DO-YOU-USE-2539171%2ES%2E160938748?view=&gid=2539171&type=member&item=160938748&report%2Efailure=Q6DhWr71umWJdWITOj4mAt_Bkta1yUnY5BST3safDt_f8xL2XaY89s-GiuYPuRUYGRokbse9ytN2yMUA5U-jpjafMTYVsMKxXUc9KsYWy8cFkaiVOEgZBI_k (accessed 3/15/13)

Wissler, R. L. (2004)The Effectiveness of Court-Connected Dispute Resolution in Civil Cases, Conflict Resolution Quarterly, 22, 55-87.

 



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Biography




Alan Gross mediates, arbitrates, facilitates, and trains at many venues in North East USA, internationally, and in New York City where he serves as the Special Projects Coordinator and Board Member for the New York Peace Institute (formerly Safe Horizon Mediation). He has previously acted as Senior Director, Training Coordinator, and 9/11 Family Mediation Coordinator for Safe Horizon.  That work with 9/11 victims was recognized with the 2006 US Department of Justice Volunteer for Victims Award.  He has also acted as ombudsman for the American Psychological Association and the New York Mayor’s Action Center, as an arbitrator for AAA, FINRA, and attorney-client fee disputes, and as a mediator for the US Postal Service and the US Army.  He is the recipient of the 2011 ADR Achievement Award from the Association for Conflict Resolution, Greater NY Chapter. Gross holds MBA and Ph.D. degrees from Stanford University and was formerly Psychology Professor and Department Chair at the University of Maryland, a Fellow of the Association for Psychological Science, and the author of a textbook and more than 50 chapters and articles related to conflict resolution and social psychology.  He is a Founding Member of Mediators Beyond Borders.



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Comments



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 D ,   Richmond Hill    07/22/13 
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I particularly liked your explanation of how a mediation can be a great way to reach an understanding that an agreement is not desirable – this can be a taboo topic but important for mediators to be unbiased and support self-determination rather than try to push an agreement.
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 Paulyn Marrinan Quinn,   Dublin  pmarrinanquinn@eircom.net      07/09/13 
 Your article on expectations from Mediation 
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Thank you. I believe that this message needs to be reinforced. I put emphasis on this theme when teaching and training Mediation/ADRs in the Course (Post Graduate: Conflict & Dispute Resolution Studies) I founded in Trinity College Dublin in 2000. Much appreciated tone of wisdom and authority.
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 kathy goodman,   New York NY  kathy@komaroffgoodman.com      06/13/13 
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This article offers a much needed conversation around all the possible outcomes in mediation, including the value in certain contexts of no agreement. On a personal level as a mediator, it expands my own thinking. Thank you, Kathy Goodman
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 Charlie ,   Glasgow    06/12/13 
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A really thoughtful article which all mediators would do well to read. Thanks.
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