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Does The Mediator Really Matter?

by Phyllis Pollack
October 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       Recently, I was sent a study that was published in The Jury Expert ( entitled “Civil Case Mediations: Observations and Conclusions” by James A. Wall, Jr., and Suzanne Chan-Serafin.

      The authors researched 62 civil case mediations in two cities to determine, empirically, whether the behavior of the mediator and/or that of the plaintiffs and/or defendants influenced the process or outcome of the mediation. The cases observed were mediated by attorneys (21 of them) and retired judges (8 of them) who had practiced law on average for 30 years and had mediated on average 606 cases over about nine years.

      First, the authors found that the settlement rate varied with the type of case. “Specifically, 89% of liability cases other than motor vehicle and medical malpractice (e.g. slip and falls. . .) ,69% of motor vehicle cases and 75% of medical malpractice cases resulted in settlement agreements.” (Id.) In contrast, 10% of contract cases and 50% of employment cases ended in settlement. Further, they found that the smaller cases settled more often than the larger ones.

      Second, the authors found that whenever a party had high goals (aka unrealistic expectations), the mediator did, indeed, use assertive techniques/statements to provide the dose of reality.  


      Third, the authors also found that their chicken-and-egg cycle for the plaintiffs’ and defendants’ behaviors was an accurate prediction:
“Specifically, plaintiffs made higher concessions than the defendants; mediators expected they could get higher concessions from the plaintiffs; therefore, they applied more assertive techniques to the plaintiffs. (Id.) 


       The authors found that the mediators did not use “. . .more assertive techniques when there were low concessions and non-agreement.” Id. Rather, two process were at work when there was non-agreement. In one set of cases, the mediators did use assertive techniques in the face of excessive demands by plaintiffs, but to no avail. In the second type of cases – contract and employment – “. . .the mediators became bogged down in the cases or became impatient and instructed the disputants to simply exchange numbers. . . .” (Id.) Not surprisingly, few agreements were reached.  


      Finally, but most importantly, the authors found that the behavior of the mediator really had no effect on whether the case settled. In 27 of the 62 civil cases reviewed, the mediators’ behavior had no effect upon the agreements. However, in the other 35 cases, “the mediators’ techniques affected the disputants’ behaviors but even in these, there was evidence that the mediators’ behaviors were occasionally reactions to – rather than a cause of – a plaintiff’s or defendant’s behavior”. Id. In short, either the mediator did not affect the outcome or her behavior was affected by the parties’ behavior and not vice versa. Id.


      In sum, it seems that this research supports the assertion of Judge Wayne Brazil that mediators “should understand that they are hosting a negotiation process.” Id.


      Obviously, as a mediator, I find this last result disconcerting. While I have hosted many a negotiation process in which I know I did not “affect” the parties’ behaviors because the matter settled quite easily and quickly, I also knew that I have hosted many a mediation in which my mediation skills did make a difference. In my gut, I know that the case would not have settled without my assistance. To say my behaviors in such instances were reactive rather than proactive to those of the parties, misapprehends the art and science of interpersonal relationship skills. As a mediator, I neither “control” the substance nor the process of the mediation. Rather, I must follow the lead of the parties, to see where they are and assist them in moving towards resolution. I “go with the flow,” take my cues from them and do not “call the shots.” So, my behavior must be “reactive” but at the same time, my “reactive” behavior is designed to channel the parties towards realistic goals and expectations, towards helping a party understand (or, at least, acknowledging) the other’s viewpoint, towards making concessions, towards understanding the needs and interests of all concerned and hopefully, towards resolution.


      So while the study is interesting, I am not sure that it understands really how a mediator plys her craft and uses the tools in her toolbox.


       What do you think?. . . Write a comment!


       . . . Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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