What Do Our Clients Want?


by John Wade

June 2013

John Wade

This title reflects a familiar marketing and ethical question for all service providers – what do clients of plumbers/doctors/psychologists/builders/lawyers etc want?

Predictably, the answers given by anecdote, “theory” and more systematic research are complicated and conflicting. There is a simple answer to every complex question, and it is wrong.

There are three elements in the question – what do the (1) clients of (2) mediators (3) want?

First, who are “clients”? There are four possible types of clients:

  • Immediately visible disputants or “parties”.
  • The “tribe” behind the visible disputants – eg relatives, shareholders, cheer squads, the hawks, doves and moderates.
  • The person paying the mediator – the insurer, taxpayer, corporation, court administrator.
  • The “expert” representative (often a lawyer) acting on behalf of the “party”.

These four categories of “clients” have different though usually some overlapping goals or “wants”.

 

Any apparent unity in each of these four teams obviously masks the reality that different members within each team have different “goals” or “wants”!

 

Goals of the fourfold “clients” multiply into a maze of spoken and unspoken conflicting hopes and expectations – no wonder mediators, negotiators and politicians age prematurely.

An important addition to the jangling and shifting fourfold “client” goals, are the sometimes conflicting goals of the mediator – to be paid, to be respected, to be hired again, to follow a tried process, to avoid deception etc – a possible fifth wheel on the already four-wheeled bus.

The second element of the question is the word “mediators”? Like physicians, there are many types, hybrids and chameleons under the umbrella of “mediators”. Much has been written about mediator typologies plus personalities.

Clients have a variety of different expectations/goals/wants from different “types” of routine or customised mediations – an opinion, or not; shuttle or not; lock-the-door or not; explore emotions, or not; long preparation, or not; clients talk-a-lot, or not; go till midnight, or not; structure or not; with all the abacus of variables in between.

The third key word in the question is “want”. “What do clients of mediators want?” All service providers face this tension – what clients subjectively “want” at the moment, may not be what they “need”, on some other objective criteria, in either the short or long term.

Moreover, a major part of a mediator’s task is to assist the fourfold “parties” to change their wants and goals to a new version of goals and needs. Therefore Initial wants (procedural, emotional or substantive) are important starting points, though not finishing points which they will “need” to reach, for a settlement of some kind to occur.

For example:

 

In typical mediator and problem-solving fashion, having made the initial “question” far more complicated, here are a few possible answers from story, systematisation and statistics.

Story

My own experience as a mediator is that what the fourfold “clients” often want from me is:

Lawyers:

  • “John”, just weave your magic”.
  • To “get rid of” a troublesome client who is not listening to advice and/or paying bills.
  • To manage a “troublesome” lawyer or tribal member on the other side eg who is giving (in their opinion) crazy advice.
  • To impose a deadline upon disorganised “opponents” by which time the mediator will require and assist with written summaries of data, evidence, rules, risks and ranges.
  • To establish via preparation meetings a calm environment where posturing pontificator or silent stonewaller will suffer some embarrassment/before a respected authority figure, and hopefully modify his/her behaviour.
  • To satisfy a statutory requirement for mandatory mediation just in case the dispute needs to proceed to a full tribunal or judicial hearing.
  • To use a process with which I am familiar and comfortable and over which I have some control.

Payers want to:

  • Settle this dispute anyway possible, quickly and quietly because the disputants are causing serious damage to our organisation.
  • Make sure the settlement sticks.
  • Set up a quick response reaction system if the dispute breaks out again.
  • Be told confidentially which party is to blame, so that we can sack him/her if this happens again(!!!).

Visible disputants want:

  • To settle this somehow – the conflict is escalating and having many side-effects on health, reputation, diversion from work, litigation trauma etc.
  • My version of “justice”.
  • A comfortable and structured meeting where some politeness and clarity may emerge from the fog of war, and legal babble.
  • To be listened to.
  • A meeting where some control is exercised over an angry, violent, stupid, mentally-ill, alcoholic, drug addicted or dominating person; or vice versa (a meeting where I can try to dominate a “weaker” person).

Tribal groups in the background want:

  • Our preferred solutions.
  • To express outrage, and righteous indignation when our representatives or relatives are weak, compromising wimps. (“principle without the pain”).

Systematised preparation lists of goals

Apart from the anecdotes above, the possible goals/wants of visible partners and lawyers can be systematised into ubiquitous lists to assist these people prepare for negotiation or mediation.

For example:


 

Client Information SheetHow Will You Measure “Success”? And What Are Your Goals At The Proposed Mediation/Negotiation?

Very Important = 5

Important = 4

Marginal Importance = 3

Not Relevant = 2

Unsure = 1

GOALS AT THE MEDIATION/NEGOTIATION

RANK

  • To clarify what this dispute is about

 

  • To be listened to

 

  • To regain some control over a confused situation

 

  • To meet in a comfortable situation

 

  • To make speeches and presentations about the strength and reasonableness of my position

 

  • To have my difficulties acknowledged by the other side

 

  • To give an apology of some kind

 

  • To receive an apology of some kind

 

  • To communicate directly, rather than through lawyers or other people

 

  • To understand why these claims are being made

 

  • To understand the other disputants better

 

  • To clarify alleged facts and evidence

 

  • To have the mediator express opinions on the reasonableness of our respective claims

 

  • To reach at least partial agreement

 

  • To reach agreement at the low end of possible range of outcomes

 

  • To reach agreement at the mid-range of possible range of outcomes

 

  • To reach agreement at the high end (in my favour) of the possible range of outcomes

 

  • To avoid the delay, cost and uncertainty of further conflict

 

  • To create at least some doubt in the minds of the other disputants about the reasonableness of their claims

 

  • To “beat” the other disputant

 

  • To have an opportunity to express my feelings

 

  • To have a mediator who controls procedure, air-time and politeness fairly

 

  • To have any agreements expressed quickly in a legally binding document

 

  • To reach an agreement that all parties can live with

 

  • To reach an agreement that is likely to be observed

 

  • To lay foundations of politeness and clear communication for a later agreement

 

  • Other ??

 

 

  •  

 

 

  •  

 

 

  •  

 

 

  •  

 

 

Date: ________________________

Signed: ______________________


 

Joint Client and Representative Goals

As a client identifies risks if the conflict continues, this will also identify client goals.

From your experience as a representative or mediator, what joint client and representative goals or measures of success do you see at the mediations (and negotiations) which you attend?

Seen Often = 3

Seen Occasionally = 2

Seen Rarely or Never = 1

JOINT CLIENT AND REPRESENTATIVE GOALS?

RANK

  • To be compliant with a legal requirement to attend

 

  • To make a presentation about the merits of a case or solution

 

  • To listen; to understand the motivations and interests of the “opposition”

 

  • To be listened to

 

  • To regain client control from professionals or inertia

 

  • To give an appearance to outsiders (eg. bosses, courts, relatives) of behaving reasonably

 

  • To gain insights into alleged facts, evidence and interpretation of rules from the “opposition”

 

  • To sow seeds of doubt with the opposition

 

  • To create a deadline for a meeting for a disorganised “opposition”

 

  • To meet in a comfortable environment

 

  • To have unruly opposition under some constraint by the mediator

 

  • To create doubt by having the mediator express an opinion about the  reasonableness of opposition’s claims

 

  • To clarify whether our claims are reasonable by having the mediator express an opinion

 

  • To wear down the opposition with another time-consuming and expensive meeting

 

  • To evaluate the skill and credibility of opposition witnesses

 

  • To reach a settlement within the predicted range of outcomes

 

  • Other?

 

  •  

 

  •  

 

  •  

 

  •  

 

Surveys and statistics

Apart from stories and systems, there are of course more structured research and statistics which give another window (not necessarily more “accurate”) into the question of “what do clients of mediators want?”

For example:

Bond University survey of mediators

In 1999, Bond University Dispute Resolution Centre assembled fifty of the most frequently employed mediators in Australia (mainly lawyers) in “commercial” disputes. Over two days this group completed a number of exercises including the following survey.

What do mediators themselves want when they have a mediator?

From the list set out below attempt to rank the desirable skills and traits you look for in a mediator. (You can only give the top ranking to five of these traits and skills.)

 

Essential

Preferable

Not

Necessary

Ranked as one of 5 top priorities

  • Warmth and friendliness

 

 

 

 

  • Substantive expertise in the area of dispute – eg. law, accounting, engineering

 

 

 

 

  • Follows a predictable mediation process

 

 

 

 

  • Highly organised

 

 

 

 

  • Stickler on process rules, good behaviour, speaking in turn

 

 

 

 

  • Good sense of humour

 

 

 

 

  • Excellent diversion strategies

 

 

 

 

  • Ready to express strong opinions; give strong advice

 

 

 

 

  • Strong opinions on process; but reluctant to give opinions on judicial outcomes

 

 

 

 

  • Protects the reputations of lawyers

 

 

 

 

  • Persistence and patience

 

 

 

 

  • Excellent communication skills – listening

 

 

 

 

  • Reframing, summarising skills

 

 

 

 

  • Good drafter of documents

 

 

 

 

Now compare your ranking with the self-perceptions of fifty leading commercial mediators from Australia.


 


ABA Survey - 2008

In 2008, the ABA Section of Dispute Resolution published the Task Force on Improving Mediation Quality.

Ironically, this report was a result of a decision “that a national credentialing program was not feasible for the current mediation marketplace”. (p2). Instead, the task force switched to investigating “the factors that define high quality mediation practice” in private practice civil cases only and not in domestic, family law, or community disputes (p2).

The information was gathered from such civil dispute mediators, and the repeat user clients and legal representatives.

The Task Force systematised its findings into four conclusions. What do these repeat clients (lawyers and business people) want from their chosen mediators? Set out below is an (over-)simplified four point summary.

Preparation

These repeat clients want inter alia pre-mediation meetings with the mediator; especially pre-mediation meetings between the mediator and any lawyers; confirmation of beginning and end times of the mediation meeting; to strategise on what is not helpful procedure; express brainstorming on type of “opening statements” are possible/desirable; and of course, settlement!

Conversely, the repeat clients did not want the absence of these services from the mediator, or to be “ambushed” by unexpected events.

The Task Force repetitively identified an apparent mismatch between the stated goals of even highly respected mediators and their repeat clients and their representatives. For example, mediators emphasised their own prominent goals of listening, having emotions expressed, promoting communication and preserving relationships. Repeat clients ranked all these “classic” mediator goals as less important to them. This mismatch needs further hypotheses and study. Why do you think this occurred? Do mediators attempt to give politically correct answers in surveys? Do mediators perceive building block goals underneath client goals? etc.

Customisation

Repeat “commercial” clients want the preparation meetings to design each mediation, and not to use a cookie-cutter approach.

They want “design discussions” around who should/should not be present; type of documents and summaries sent or swapped; types of “speeches”; and many other customised variables.

Analysis and Advice-Giving

Repeat commercial clients want the mediator to engage in a range of “active inputs” including – asking pointed questions about facts, perceptions, goals, risks and rules; giving advice indirectly by asking questions; giving advice directly at the right time, place, in the correct “tone”, with the right words, to the right parties – that is, advice giving is a subtle and sophisticated exercise; - suggesting a range of procedural and substantive options.

Again, in this study, there is a clear mismatch in client, mediator and lawyer perceptions about sophisticated advice giving. Clients want this “often”; mediators want to give this service much less often (or at least perceive they give this advice-giving service less often?).

Persistence

Clients want mediators to be active and exert pressure on all parties to continue considering options and/or change the style of the meeting. There is clearly uncertainty on how to do this task well, and when it is “too much” pressure.

Surprisingly, clients expect follow-up and mediator contact after the formal mediation is “over”. That is, clients want structure for future contact, not to be left in the wilderness of a “failed mediation”.

The ABA study offers a challenge to common mediation orthodox “beliefs” and practices (eg no advice, no follow up, few preparation meetings), and to mediation training; and by suggesting some uncomfortable truths about what certain mediation clients want.

Conclusion

The catalogues of “wants” and “goals” of the four client groups who use mediation differ dramatically and also overlap. How to predict what a particular client subjectively wants, and then go on to persuade him/her what to try what is objectively needed?

Mediation industries are fragile in reputation and marketability. Supply of eager mediators far exceeds demand. Therefore it is important for mediators to include extensive, and expensive, preparation meetings with the four client groups:

  • To tease out what is/might be wanted by members of each group
  • To lower expectations by advice and stories
  • To share humble hypotheses on what clients might objectively need
  • To encourage regular feedback during meetings on whether the service is meeting expectations.

J H Wade, Advanced Mediation Workbook (Bond University; 2008) p 64-65.

Wade, ibid at 61.

Wade, ibid, 86-7.



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Biography




John Wade is an Emeritus Professor of Law at Bond University and a practicing lawyer. John is a nationally and internationally acclaimed expert in dispute resolution, legal education and family law. For the last 40 years he has taught at two Australian, three Canadian, one French and four US law schools. He has led over 250 courses in mediation and negotiation for law firms, government and industry in UK, Hong Kong, NZ, USA, Indonesia and Australia. John was one of the founding editors of the Legal Education Review and pioneered the postgraduate teaching of educational methods and theory to new law teachers. He has published over 100 books and refereed journal articles.

Mediation practice.  Since 1987, John has mediated hundreds of disputes in areas of family property, organisational, succession, insurance, and child disputes. He has developed a specialty in family property conflicts. In 2011, John was named by the International Bar Association as one of the top nine commercial mediators in Australia. In 2013, John moved to Vancouver, Canada with his family, and continues his mediation practice and teaching there.



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Website: www.bond.edu.au/law/centres

Additional articles by John Wade



Comments



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 David Bogan     david@davidbogan.com      06/20/13 
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Thank you John for such a great article, I've printed it and will keep it for future reference. I was also interested to note that 'listening' was on top of the agenda and as you will be aware this was the prime requirement of the mediator in the NSW Farm Debt Mediation Act when it was first passed back in 1994.
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 LRD ,   Los Angeles  Mediator@LRandyDrew.com      06/17/13 
 Happy Homework 
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Wow! Talk about being on point; I've set some time aside to rethink some of my priorities. I always say, I reserve the right to change my mind, when presented with new information. You nailed it, Mr. Wade, with this article. Thank you, for taking the time to share your insights, and I'm glad you're out there.
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