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<xTITLE>Mediation Approaches: We Don’t Have Science, So Let’s Have Principles</xTITLE>

Mediation Approaches: We Don’t Have Science, So Let’s Have Principles

by Dan Simon
September 2019

Institute for the Study of Conflict Transformation by Dan Simon

Dan Simon

The research on mediation approaches shows a connection between transformative methods and the best outcomes on all levels.  (See this article about a study from the State of Maryland, this one about a study by the ABA, and this one on the US Postal Service REDRESS program).  But none of that research included randomized controlled experiments, so we have no conclusive scientific evidence about which approaches cause which outcomes (and let’s face it, it would be inhumane to randomly assign mediation participants to some of the commonly used methods out there).  Given that we don’t have science to justify our methods, what should we do?

Some mediation techniques are intended to move parties toward certain outcomes (mostly toward settlement in litigated cases, sometimes toward reconciliation, and sometimes toward the mediator’s idea of the best outcome).  The absence of scientific evidence on the impact of these techniques raises serious problems.  Among the things we don’t know are:  1) Do these techniques make the intended outcomes more likely?  2) Are those intended outcomes desirable in the first place?  3) Do these techniques cause harmful side effects?  (We certainly don’t have proof of favorable answers to these questions, and I have my own suspicions that the real answers are 1) No, 2) Not necessarily, and 3) Yes).

So what should we do, considering the lack of scientific evidence? I have some principles that ease my conscience in the face of my inability to honestly claim any provable positive effects of what I do. 

1)  Wholeheartedly support party choice about whether to participate in mediation.  Since I have no way of knowing whether any particular person will benefit from what I do, I don’t claim to know that it will.  I don’t try to persuade anyone to try mediation.  The decision to do so must come entirely from them, as opposed to me.  And they get to change their mind at any time without me having any preference that they continue.  

2) Throughout mediation, never imagine that I know what choices a party should make about any aspect of the process.  I have no way of knowing, for example, that “the plaintiff should speak first” or that “you shouldn’t interrupt each other” or that “you should listen to each other”.  So I don’t guide, recommend or nudge parties toward doing any of that.

3) Constantly monitor my own motivations.  I have plenty of selfish impulses during mediations:  to impress the parties, to be liked by the parties, to appear wise, to appear helpful, and to impress their lawyers or other referral sources.  These impulses could lead me to pretend to know things I don’t know.  So I need to be vigilant in making sure I’m true to my commitment not to do things that for all I know are harmful.  

These principles don’t guarantee positive outcomes either.  But they feel ethically appropriate in that they prevent me from making false claims, they limit the harm that I could cause if I acted like I know more than I do, and they protect the parties from my selfish impulses.  

How do you make sure you’re doing no harm?

Biography


Dan Simon writes the blog for the Institute for the Study of Conflict Transformation. He is a national leader in the field of transformative mediation.  He practices and teaches it in Saint Paul, Minnesota.  He's trained mediators throughout the country for the U.S. Postal Service, the Institute for the Study of Conflict Transformation, and as an Adjunct Professor at the Hofstra University School of Law. He serves on the Minnesota Supreme Court's ADR Ethics Board, is the Immediate Past Chair of the Minnesota State Bar Association's ADR Section; and he serves on the Board of Directors of the Institute for the Study of Conflict Transformation. He has been the director of Twin Cities Mediation since he founded it in 1998. He helps with divorces, parenting differences, real estate issues, employment cases, business disputes, and neighbor to neighbor conflicts.



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