February 6, 2018

Mediation can take many forms. But what can be done to enhance your chances of success? While there may be no definitive recipe, this article will explore different possibilities.

Let’s first discuss the role of the mediator. We know from our own real-life experiences that the techniques and style of the mediator play a critical role in the mediation process. But is there a specific technique and/or style that is considered a best practice? A recent study published by the ABA Section of Dispute Resolution would suggest that there is no identifiable “best practice.” [1] Yet, in the study’s complex narrative, one can see that there are certain practices that tend to be more beneficial than others.

The study indicates that the following approaches may have a positive impact: 1) eliciting disputants’ suggestions or proposed solutions; 2) paying attention to disputants’ emotions and sources of conflict; 3) building trust and rapport; and 4) using pre-mediation caucuses to build trust.  Some approaches indicate a potential for positive results, but at the same time a greater risk for negative consequences, such as a “pressing, directing or criticizing style,” or making evaluations and expressing opinions. This sounds very much like the ongoing discussion of the pros and cons of the evaluative versus facilitative approaches to mediation that you are probably familiar with.

My take-away from this study is that there are some mediator techniques that in fact enhance the chances of success with little risk of negative consequences. These include building trust in the process, and using pre-mediation caucuses as a means of doing so, and eliciting suggestions and proposed solutions from the parties and attorneys.  But other techniques appear to have greater risks, even if they can be used successfully. These techniques fall into the evaluative category such as pressing and directing the parties and offering opinions or criticisms. This is not to say that such techniques should not be used, rather that there is a greater risk that needs to be assessed.

The fact is that mediation is an art form, and the various techniques and styles must be carefully applied as the mediator reads the people and the circumstances. One approach does not work in all circumstances, and the circumstances can change even during the course of a single mediation. The mediator may flow in and out of different approaches as the issues evolve and take shape, and an ability to read the terrain truly enhances the chances of a successful mediation.

But responsibility for a successful mediation should not fall entirely on the shoulders of the mediator—the stakeholders must contribute as well. Here are some examples:

You should provide the mediator with information relevant to the case well in advance of the mediation. This can include a short brief or letter, preferably one that is designed to be shared with the opposition. The mediator can use this information as he/she sees fit in a fair and impartial way.  Sometimes it will be necessary to share with remote decision makers such as boards of directors or insurance companies. Advance information will also give the mediator an opportunity to discuss the case with both sides as part of building trust. And finally, information sharing will help the mediator to identify underlying interests. These are the interests that will motivate the parties to a common objective.

You may also want to consider some form of joint session where the mediator addresses the stakeholders on both sides of the controversy. The joint session can be as simple as a presentation by the mediator addressing the process. The primary purpose is to build trust in the process and to anticipate obstacles that could impede success.

Parties and other stakeholders can help by engaging in the negotiation process. While the fruitful exchange of information is essential to the process, at some point the conversation has to turn to negotiations. The prolonged sharing of information can become counterproductive because it impedes discussion of a resolution. In such situations, it is necessary to make a conscious effort to turn to negotiating a resolution. Unless the parties make this transition, they can become trapped in a never-ending debate of who is right and who is wrong with no movement toward settlement. Once the transition is made to discussing a resolution, then the form of the settlement begins to take shape and the parties begin to develop a common objective. The parties can work in harmony with the mediator, seeking and receiving guidance on process and substance as appropriate.

The parties and other stakeholders should prepare themselves for rigorous back and forth negotiations. Often referred to as “the dance,” these negotiations can prompt extreme frustration and similar emotions. That is why advance anticipation of these emotional responses is important because it allows the mediator to help the parties work through this difficult part of the process. The parties need to trust the process, because, even when parties are seemingly “far apart,” in most instances they will bridge the gap and find a resolution.[2] A mediator can help the parties to maintain trust in the process and persevere even when a successful outcome seems unlikely.

In sum, you can enhance the chances for a successful mediation by attending to a few basics. Connect with your mediator in advance of the mediation.  Try to understand how the mediator is going to approach the mediation and stay in tune with the mediator as the process unfolds. Share information with the mediator in advance of the mediation so as to allow the mediator to exercise his or her discretion to in turn share some or all of the information with the parties and stakeholders on the other side of the case. Be receptive to a joint session to address the process. Be open to challenging negotiations that will tax your emotions. Stay with the process and trust it. Remember, an extremely high percentage of civil cases settle—it is only a question of when.

[1]   Report of the Task Force on Research on Mediator Techniques (June 12, 2017). See www.americanbar.org/content/dam/aba/administrative/dispute_resolution/med_techniques_tf_report.authcheckdam.pdf

[2]   As an interesting aside, the negotiation process has been the subject of computer modeling that is being used to anticipate, to some degree, the path of the negotiations. These models will show moves in position that may not be seen by the stakeholders, especially where frustration and other emotions are running high. See www.pictureitsettled.com.