A study reported in The Jury Expert (brought to my attention on Phyllis Pollack’s blog), came to the somewhat surprising conclusion that the mediator’s behavior did not greatly affect the agreements reached. The researchers observed 62 mediations, then coded and analyzed the particpants’ statements, and correlated those with the results achieved. They were surprised to find that the mediator’s behavior and techniques seemed to have a limited impact on the results. The authors conclude that, rather than seeing their actions as determinative, mediators “should understand that they are hosting a negotiation process.” (This sounds like a comment noted in my post on the “beer summit”, where one of the participants described President Obama’s contribution as providing the beer.) This conclusion still seems questionable given the results reported which indicated that in more than half of the observed mediations, the mediator’s actions did affect the disputants’ behaviors. More than half the time seems like a lot to me. I know from my own experience that if I give up too easily, or say the wrong thing, the participants in a mediation may decide to walk away from the table. But if I keep trying to ingratiate myself with the parties and push and cajole them toward a resolution, I can cause parties to renew their efforts. Depending on my rapport with the parties, or my techniques, or even my mood, the results of mediation can vary greatly.
Nevertheless, I agree to some extent that all participants in the judicial process–attorneys, judges and mediators–should appreciate their limitations. I recall reading that the great trial lawyer Edward Bennett Williams said that even the best trial lawyer in the world could only improve his client’s chances by a relatively small amount (so for example, if a client had a 4 in 10 chance of prevailing with a minimally-competent attorney, a super attorney might be able to improve the odds to perhaps 6 in 10). I also recall asking a trainer at one of the mediation seminars I have attended a question about putting some of his theories into practice. His somewhat surprising response was that we should not worry about that too much because as long as mediators exhibit patience and good will and especially persistence, we are all going to be relatively successful in getting cases settled. Mediators therefore well understand that most cases will settle with or without a mediator, and regardless of the quality of the mediator involved.
So what does the mediator bring to the table, as far as results that might not be measurable by the means used in the reported study? For one thing, the mediator’s actions can greatly affect the parties’ satisfaction with the process. If a case settles, but one or both sides walks away feeling cheated or abused or railroaded, that could still count as a “successful” settlement, but the mediator may not have adequately performed his job in helping the parties understand the benefits of what they have achieved. The mediator’s actions may also affect the quality or fairness of the settlement that is achieved, something that would probably be difficult to measure in any study. To the extent the mediator is able to expose the parties’ interests, and the strengths and weaknesses of their respective positions, the mediator may have greater success in leading the parties to a settlement that will stand the test of time.
Any mediator changes the dynamics of a negotiation by allowing the parties’ attorneys to retain more of their role as advocates. The mediator relieves the attorneys to some extent of having to play devil’s advocate, since the mediator performs the job of conveying the other side’s position to their client. The mediator also provides a filter for the views of the other side, often enabling messages to get through that otherwise might be tuned out because of distrust of their source. Any mediator thus does a lot more than host a negotiating process. Moreover, different strategies by the mediator should also have an impact, not only on whether the parties are able to reach an agreement, but also on the nature of the agreement reached, and the parties’ satisfaction with it.