Momentum seems to be building for mediator credentialing in the United States. Change is no doubt coming. What form that may ultimately take remains to be seen — whether public licensing by the state (least likely) or the adoption of credentialing mechanisms by major ADR membership organizations that dominate the national scene (most likely). This is but one of several difficult and divisive issues that the field will grapple with in the years to come.
As we contemplate and debate change, let us hope that we ADR professionals can do what we ask of our clients: to listen with open minds, to ask questions, and to be alert to possibilities.
I appreciate that doing so is easier said than done. I know this from my own humbling experience participating on a committee that wrestled with a possible change in Massachusetts state law that protects mediation communications. From the beginning, the work of that committee grew entangled with the charged issue of mediator qualifications; not surprisingly, stalemate resulted. Let’s just say that mistakes were made (by present company included).
Drawing on the lessons that tough teacher experience has taught me, I would present the following list of the cognitive errors I see as most likely to trip us up as our profession debates the important issues we face. And by all means please suggest your own in the comment section below.
Reactive devaluation. As readers know, reactive devaluation (PDF) is the tendency to devalue or discount a proposal simply because the person who proposed it is someone we don’t much like. We see our clients at the mediation table commit this very human blunder. Not surprisingly, mediators are as human as their clients. Honesty compels us to acknowledge that there will always be people, even within our own field, who rub us the wrong way. That doesn’t, however, mean that we should automatically discredit or devalue their opinions. Even jerks can be right.
Confirmation bias. Confirmation bias is our tendency to seek out or interpret information that confirms what we already believe or to discount information that doesn’t support our world-view. Put your hand up if you’ve never done this. See? No hands in the air. That confirms precisely what I suspected.
Status quo bias. Recently journalist James Surowiecki, in an article for the New Yorker, wondered out loud whether the American public’s resistance to changing the existing health care system results from status quo bias –a tendency to prefer things the way they are. Such resistance to change is rooted in loss aversion, according to “Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias” (PDF), a paper published by professors Daniel Kahneman, Jack L. Knetsch, and Richard H. Thaler, which points out that “individuals have a stronger tendency to remain at the status quo, because the disadvantages of leaving it loom larger than advantages.” If you catch yourself saying “because we’ve always done it this way” or championing “the devil we know” over “the devil we don’t”, you may have fallen into the status quo snare.
The influence of authority. In his famous work, Influence: The Psychology of Persuasion, Robert Cialdini delves into our susceptibility to the manipulations of others, describing six basic categories of weapons of influence. Included among the six is authority, a particularly powerful instrument of persuasion, used to influence everything from consumer purchasing decisions to support for political candidates. In fact, mere symbols of authority trigger our compliance, from impressive-sounding titles to “the well-tailored business suit”. But if there’s one thing the current economic crisis has taught us, it’s that even the experts can get it wrong. So let’s draw advice from a sixties-era bumper sticker: Question Authority.
Finally, let us not forget the overconfidence effect – our boundless optimism about our own abilities and talents, despite evidence to the contrary. That includes of course our overconfidence in our ability to recognize and avoid cognitive errors.
For now, let us all be supremely overconfident that we will, one way or the other, slip up.
At ADRblogs.com, I have monitored blogs from around the globe that discuss alternative dispute resolution in its many manifestations.
Started three years ago, today the World Directory of ADR Blogs tracks over 220 blogs from 30 countries, bringing together the world of blogs covering mediation, arbitration, negotiation, conflict resolution, and people-focused innovations in justice and law. It’s been exhilarating to work on it, since it has helped me connect with people plane rides and time zones away who share a commit to resolve disputes through constructive and non-adversarial ways.
However, other projects beckon, and I no longer have the time to devote that an undertaking like this deserves. Consequently, I have decided to put the site up for sale.
If you’re interested in continuing my work, please get in touch for further details.
From time to time I select noteworthy blogs from recent additions to ADRblogs.com, the site tracking alternative dispute resolution blogs world-wide, and highlight them here. Here is my latest selection, four blogs that stand out in different ways:
Mediation Strategies, published by San Francisco mediator and lawyer Michael Carbone, discusses techniques for resolving civil lawsuits and other disputes, with recommendations to lawyers and clients on how to prepare for mediation. Carbone, who writes well, is off to an impressive start, with posts such as “Deciding when to mediate“, earning him a well-deserved place among Mediate.com’s Featured Bloggers.
The Trial Warrior is published by Antonin Pribetic, a Toronto-based lawyer who specializes in domestic and international commercial litigation and arbitration. Pribetic is also an academic, teaching Advanced Legal Process at the University of Toronto at Mississauga-Rotman School of Management Diploma in Forensic & Investigative Accounting (DIFA) program. A gifted writer who brings keen-eyed analysis to his work, Pribetic describes the unique focus of this outstanding blog:
A few years ago, I picked up a copy of The Art of War—the classic Chinese treatise on military theory and Taoist philosophy—and experienced an epiphany after reading the following quote from Sun Tzu: “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” Since then, I have studied and applied The Art of War to both my professional and personal life. This blog will endeavour to lead rather than simply follow; to enlighten, inform and entertain, as well as to learn from its readers, contributors and warriors in all disciplines and walks of life.
Mediation’s Place, published by Joseph C. Markowitz, a trial lawyer and mediator based in Los Angeles, grapples with compelling questions:
How does mediation fit into a system of justice that seems antithetical to mediation? What changes need to be made to court procedures, and to litigants’ mindsets, in order to resolve issues by negotiation instead of by litigation? Why is mediation called a form of “alternative” dispute resolution? What makes mediation work?
New bloggers are often advised to focus their blog on a niche topic. Published by Florida firm Upchurch Watson White & Max, Wealth Mediation Blog does precisely that, focusing its posts on issues relevant to its client base, family businesses and families of wealth.
For additional blogs on alternative dispute resolution and negotiation, consider my recent list of top 24 ADR blogs.
Those of us who mediate like to believe that our skills and temperament influence parties who are poles apart to move toward resolution, reconciliation, or settlement. But how influential are we really?
My colleague, attorney and mediator Stephanie West Allen, steers readers toward an article by ADR academics James A. Wall, Jr. and Suzanne Chan-Serifin, “Civil Case Mediations: Observations and Conclusions“, in the new edition of The Jury Expert. This article appears to cast some doubt on how mighty that influence may be.
Concerned by the absence of “empirical studies that report mediators’, plaintiffs’ and defendants’ behaviors in mediation or more importantly that indicate how the various participants’ behaviors may influence the process or the outcome”, authors Wall and Chan-Serifin undertook an inquiry into mediation practice, observing 62 civil cases conducted by 21 attorneys and eight judges with substantial legal and ADR experience.
These observations led them to some conclusions that mediators may find humbling:
When we reflect on our study and its results, we find civil case mediation is a lot like aspirin: it works, but we don’t know exactly how. Consider that we found mediation frequently resulted in settlements but the settlement rate was dependent upon the case type. In attempting to obtain agreements, mediators pressed defendants as well as plaintiffs whenever they expressed high aspirations; however, they pressed plaintiffs more strongly than the defendants. But their pressing – like all of their other techniques – appeared to have little effect upon case settlements.
What are the practical implications of these findings? The primary implication – for mediators – is that they should acknowledge that the outcome of the mediation (e.g., agreement or nonagreement) is to some extent independent of the mediator’s behavior. This suggestion is consistent with Judge Wayne Brazil’s charge that mediators should not exaggerate their responsibility, ability or contribution to the mediation (Brazil, 2007). Rather, they should understand that they are hosting a negotiation process. . . .
The final implication is for scholars as well as practitioners. In the last decade there have been approximately 80 articles that advise mediators on the tactics and strategies they should employ. They are told to control emotions, obtain apologies, overcome perceptual errors, facilitate, define the problem, evaluate, not evaluate, not believe attorneys, be neutral, be fair, improvise, manage risks, focus on central elements, etc. Most of these prescriptions and proscriptions should not be proffered, because they assume the mediators control the mediation process. As noted previously, our evidence, as well as that from other studies indicate mediators do not have substantial control over the process. Rather, it seems that the case type and the plaintiffs’ behavior are the more influential factors.
Mediators, don’t panic yet. Sixty-two civil cases mediated by 29 mediators does not seem a large enough sample to draw reliable, universally applicable conclusions from. Stephanie has already raised some good questions herself in her post. I would add some of my own.
- What model or philosophy of mediation practice do these 29 mediators rely upon? It’s not clear from the article, and the differences among the various approaches to mediation practice, including the role that each participant plays and how broadly or narrowly issues are defined, are significant. They matter. I for one would welcome research that examines what influence if any different models of mediation may bear on resolving conflict. It’s time at last to test the assumptions that so many of us hold about the efficacy of the various models of practice (and of course we all have our favorites).
- What about other kinds of disputes? What would the results be if instead the study involved observations of disputes not in litigation – cases in which the law and the court play no role?
- What about the identities of the participants themselves? Does it matter that the mediators were all members of the bar and that these cases involved attorneys and represented clients? What differences might we observe if the professional identities of the players were wholly different?
As provocative and arresting as the conclusions may be that the authors draw from their observations, I don’t think it’s time yet for mediators to rewrite their marketing materials or for mediation trainers and educators to revise mediation training materials or course outlines. The authors are correct to point out that we most certainly do need more studies of mediation. Our profession – and consumers of mediation services – would benefit from further and in-depth research that illuminates whether and how mediators influence the parties at the negotiation table.
As my readers know, the private practice of mediation remains unregulated in the United States. Some view this fact with consternation, others with relief.
Meanwhile, in the absence of public licensing of mediators in private practice, private organizations have stepped in to fill the void left by the state, offering private credentialing mechanisms. The giants in the field who have embarked on this path have done so with transparency, inviting the input of practitioners to shape such mechanisms, and with honorable intentions and a concern for ethical practice, with the credibility that reputation has earned them.
There’s one problem. Just as anyone can hold themselves as a mediator, so, too, can any organization hold itself out as a credentialing body.
A colleague recently alerted me to one credentialing scheme that raised some warning flags. One private company has begun offering credentialing for mediators. It’s a business neither of us had heard of. The qualifications it specifies are minimal, setting the bar dismally low.
None of this is reassuring, not to consumers and not to mediators.
