Category Archives: Attorneys and Mediators

Grain of salt: how much does mediator behavior influence the outcome of mediation?

taking mediation research with a grain of saltThose 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.

Do Generation Y and Baby Boomer lawyers need a mediator?

mediateI’ve written often here about the fault lines in the ADR profession – the deep rifts dividing facilitative and evaluative mediators, the line in the sand between attorneys who mediate and professional mediators who are not lawyers. These dividing lines damage our collegiality and pose harm to our credibility as dispute resolution professionals; if we are unable to face and address our own differences, how can we be relied upon to assist others?

Other professions are of course no strangers to such schisms. In fact intractable conflict smolders now between lawyers, rooted not in doctrinal or political differences but in generational ones. Adrian Dayton, a lawyer who publishes an eponymous blog, discusses its impact in “Candid exchange highlights a disconnect” in The Buffalo Law Journal.

After describing the rancorous arguing that has ensued between members of different generations of lawyers, Dayton, a Gen Y lawyer, observes:

What does that tell us? That there is a real conflict – and lack of understanding – on both sides. The biggest message I took away from it was that we’d better figure each other out – we’re going to be together for a while.

Dayton has thus signaled his willingness to bridge the generation gap. So what about his counterparts on the other side? No word yet. But if they need some assistance, the blogosphere’s full of mediators.

Lawyers are from Mars, clients from Venus: differing perceptions of mediation documented in new book

lawyers and their clients inhabit parallel worldsAfter attending a breakout session at the 2009 ABA Section on Dispute Resolution Spring Meeting titled  “What Do Litigators Want from Mediation?”, I decided it was high time to ask “What about clients?“, writing a post that called for much closer attention to the needs of those directly affected by disputes. I’m glad I did, since it turns out that my readers and I are not the only ones concerned about questions of that kind.

The June 2009 newsletter of the Resolution Systems Institute is out and includes a review of a recent book (PDF), Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties, by Dr. Tamara Relis, a British Academy Research Fellow in the Law Department of the London School of Economics and Political Science.  Relis’s book describes a vast perceptual gulf between lawyer and client, who hold opposing views and expectations of mediation. From the review:

Relis uses quotes effectively to demonstrate the parallel worlds lawyers and parties inhabit. Moving chronologically from parties’ aims in litigation through their experiences with mediation, the quotes show that lawyers’ and clients’ views and experiences were often completely different. When asked what the plaintiffs wanted from litigation, lawyers unanimously stated it was entirely, or primarily, money. Plaintiffs, on the other hand, discussed a need for explanation, admission of fault by the doctor and/or hospital, and apology. Money was not their focus. These parallel worlds had a significant impact on the cases, the mediations and the resolutions because lawyers maintained control…

Relis documents striking differences not only between lawyers and clients but also between men and women:

Interviews also indicated gender differences among lawyers and parties in perspective and approach to mediation, and among mediators in their ability to control the lawyers. Female lawyers were more likely to see merit in the emotional aspect of mediation. Female parties were more likely to feel trepidation about the mediation, to be more concerned about how their statements were perceived, to be influenced by mediators’ statements and behavior, and to be less likely to talk during the mediation. Female mediators were viewed by the parties as being less in control of the lawyers and the mediation.

An excerpt from the first chapter is available for downloading.

Dr. Relis is also the author of an earlier work, “Consequences of Power,” an article that appeared in Harvard Negotiation Law Review and  available as a PDF download at the Social Science Research Network.  It describes a disconnect between attorneys’ objectives and those of their clients and shows that the intentions of plaintiffs and defendants in mediation are more closely aligned than one might suppose–and  all too often thwarted in their desire to communicate with each other.

I hope that my brothers and sisters at the bar are listening.

What about clients? Time at last to consider what they want from mediation

Time to consider client needs in mediation

At the recent ABA Section on Dispute Resolution spring meeting, I attended one program whose title promised an answer to the fascinating question “What Do Litigators Want?” when it comes to mediator practices.

All well and good, but the question I was most interested in was very different: “What do your clients want? “

Alas, I never got a straight answer, although the guy sitting behind me whispered his thanks in my ear and said, “I’m glad you asked that. I’m a client myself, and I can tell you right now, my lawyers don’t have a clue what I want.”

So what can we – attorneys and mediators alike – do to help clients choose and participate fully and meaningfully in the right process for them and their dispute? Here’s my modest proposal, with a tip of the hat to Joseph P. McMahon, Leonard Riskin, and Nancy Welsh:

  • Start with the premise that informed consent is vital for all participants – for lawyers, for clients, and for mediators. And let us all remember to whom the dispute and ultimate resolution belong – not the lawyers, not the mediator, but the client (remember them, anybody?).
  • Educate lawyers and other likely consumers of ADR services fully about the various philosophies of mediation practice, providing them with accurate information about the benefits and drawbacks of each.
  • Insist that mediators themselves be well informed about the varieties of practice in their own field so that they can in turn provide accurate information to prospective clients – and to journalists who come calling for interviews.
  • Develop better systems for intake, to include an assessment of the conflict that can guide the design of a process best suited for the parties and the issues and that identifies the parties necessary for resolution before scheduling the mediation.
  • Mediators can emphasize the importance of preparation to lawyers and their clients; lawyers can do their part to encourage their client’s knowledgeable, fully informed participation.
  • Allow clients full say in shaping the process and defining the issues to be sure that mediation addresses all the concerns relevant to them and to the resolution of their dispute, not merely the legal ones.

That would at least be a start. If you have other ideas, by all means, weigh in. I’m all ears.

(With apologies to the gang at everybody’s favorite client-centered blog, What About Clients?)

Gorilla in the room: the dividing lines in mediation practice

the gorilla at the mediation tableLast week’s annual spring meeting of the ABA Section on Dispute Resolution was endowed with an optimistic title: “ADR: Building Bridges to a Better Society”. Despite the noble sentiment it carried, something else – unwelcome and ignored – was present.

It was there in the plenary meetings and in the sessions I sat in on. No one explicitly named it, but plainly there it sat: the dividing line that separates one practitioner from the other. It was there when the famous scholar declared that cases involving legal issues are best mediated by attorneys only. It was there in one of the workshops when a facilitative mediator declared an evaluative intervention to be “wrong” and “bad mediation”.  It was there when a law professor dismissed lawyers – the original dispute resolvers – as flunkies and functionaries of a heartless judicial system. It’s the line that runs straight between attorneys who mediate and mediators who don’t practice law. It’s the line that separates facilitative mediators from mediators who evaluate. It’s the line between theory and praxis. We ADR professionals pay lip service to the values of community and collaborative effort; but the reality is otherwise for those willing to look more closely.

Other lines divide us, too, along the borders of gender and race. Women and people of color remain excluded from premier ADR panels. Women, who face gender-specific hurdles when it comes to negotiation anyway, confront particular disadvantages when it comes to the selection of mediators who assist at negotiations. Meanwhile, in the recent issue of the ABA Dispute Resolution magazine, dedicated to diversity, and which arrived the day before I departed for the spring meeting in New York, the concluding page of one article (a critical look at the lack of diversity in ADR’s upper echelons) faced an advertisement for a prestigious training organization with head shots of trainers who were white and male, with only a single woman represented among them. Yet still at the conference I heard an honored guest speaker look back on a moment in history when women faced barriers in ADR as if that time belonged solely to a long-ago past and not to the present.

It seems to me that unless we build and cross bridges within our own community, we can hardly expect to bridge gulfs outside it.

So, in the words of Joan Rivers, and mediators everywhere:

Can we talk?

Connecting at the ABA Section on Dispute Resolution Spring Meeting

connecting to ADRSurmounted by an image of a righteous Old Testament god, the frieze above the entrance to the GE Building in New York City bears the words, “Wisdom and Knowledge shall be the stability of thy times“, chiseled into stone. Along with collegiality and connection, these were no doubt the objectives of those who attended last week’s 11th annual spring meeting of the American Bar Association’s Section on Dispute Resolution.

So how did it go?

Meeting long-distance friends and fellow bloggers – some of them for the very first time – was a welcome pleasure.  Waiting for ADR bloggers on the morning of the first day of the program was the personable Jim Melamed, co-founder of Mediate.com, the ADR world’s best known news and information resource. Bearing a tantalizing box of Krispy Kreme donuts was Jeff Thompson, who blogs at Enjoy Mediation and represents the face of the new generation of conflict resolution professionals. Jeff, a NYC police officer working in the Community Affairs Bureau and a Buddhist who has met the Dalai Lama twice, offered us a warm welcome to the city he lives and works in. Keep your eye on him, folks – he is one of tomorrow’s leaders. It’s people like Jeff who will be bringing change and new direction to the practice of mediation.

I got to reconnect with Wellington barrister and commercial mediator Geoff Sharp of Mediator Blah Blah, who was here in the Boston area for a conference about two or so years ago. Warm, wise, and even funnier in person than he is on his blog, Geoff is someone I count myself fortunate to call friend. (Good to see you, Geoff.) And meeting Settle It Now author Vickie Pynchon in person for the first time – after numerous emails, phone calls, and comments back and forth on each other’s blogs – was extraordinary. Perhaps more than anyone I know, she embodies the spirit of the best of the blogosphere – its mutuality, its neighborliness, its collegiality, its open and courageous engagement with ideas, its generosity.  As she writes, reflects and connects with her vast web of online social contacts, so, too, does she in person. Vickie is also the founder of the Professional Women’s Network of Southern California, open to those outside that geographic area.

Other bloggers I met included ADR pioneer Jeff Krivis, and Phyllis Pollack, a high-energy, hard-working Los Angeles attorney and mediator who writes the blog PGP Mediation, which discusses the dynamics at work at the mediation table. In addition to running a busy practice and publishing a blog, Phyllis also finds time to serve as president-elect of the Southern California Mediation Association.

Although I came for the programs, I primarily showed up for the schmoozing.  Besides meeting bloggers, the spring meeting was an extraordinary opportunity to get to know ADR professionals and scholars from all over the globe – to have impromptu discussions and conversations in meeting rooms, hallways, elevators, and over restaurant tables. It’s a reminder that no matter how wonderful social media may be, there is simply no substitute for face-to-face interaction in real time, right in the moment.

Those were among the positives – those things that made attending the event worthwhile. There were also glitches and disappointments, of which I will mention one now. I promised readers that I would be live blogging and Twittering from the event. I am glad that I thought to include the caveat that I would do so in the absence of technical difficulties. As it turned out, reliable wireless internet access was a big problem.  The hotel offered for-fee ethernet access in guest rooms (although those of us who were bunking with spouses or colleagues were charged for access for each laptop plugging in, rather than a single fee for the room) and free wifi in the lobby with only very limited and unreliable wifi in the conference meeting areas. This left disappointed bloggers like me who were planning on blogging live from plenaries and break-out sessions to bring the conversation to our readers unable to attend the event. I can only hope that organizers for next year’s conference will plan better for Web 2.0. This was a missed opportunity to make the most of the internet and bring the ABA Section on Dispute Resolution fully into the 21st century.

I’m already looking ahead to next year…

Facilitative? Evaluative? The struggle to define the practice of mediation

Recently I criticized a call by Stephen Erickson of the Association for Conflict Resolution to establish a certification system for mediators.  (Lively discussion ensued, and people have continued to weigh in, so please feel free to contribute.)

According to Erickson, facilitative mediation is “good” and evaluative mediation, by inference, is bad, since evaluative mediation undermines self-determination, a core principle of mediation practice.

I responded by insisting that we owe it to our profession to bring greater nuance to our debate about mediation practice and credentialing, and not privilege one style of practice over another, reducing the debate to little more than facilitative-good/evaluative-bad.

But my main point was that we mediators need to do a much better job educating the public about what we do and how we practice so that parties can make informed decisions about choosing the approach – facilitative, transformative, evaluative, narrative, understanding-based, or a hybrid of approaches  — that best fits their dispute.

However, just because we strive to be inclusive in discussing these issues does not mean that we check our critical faculties at the door.  Evaluative mediation certainly has its uses, but it does have its shortcomings, too, as Len Riskin and Nancy Welsh described recently in their article, “Is that All There is? The ‘Problem’ in Court-Oriented Mediation“, since that approach allows the preferences of lawyers and insurance adjusters to dominate and  narrows discussion to legal and economic interests, while disregarding a whole range of other concerns — emotional, interpersonal, behavioral, community — that are no less integral.

Similarly, in “Moving Mediation Back Toward its Historic Roots – Suggested Changes” (in PDF), Joseph P. McMahon, Jr., criticizes the law-centered, “low functioning” approach to mediation that increasingly the legal community has come to accept, characterized by separation of parties with no opportunity for direct dialogue, a focus on monetizing the dispute, while legal issues take precedence over the parties’ own narratives and personal experience as the mediator-expert directs the parties toward settlement. McMahon advocates revolution, overthrowing one model in favor of another.  McMahon proposes a solution that restores face-to-face dialogue to its rightful place and returns power to the parties by engaging them in designing a process and an outcome that will best serve their needs.

Unfortunately, public perception remains otherwise.  In the popular imagination, the all-powerful mediator shuttles back and forth between separate rooms, controlling the flow of information between parties, and withholding food and drink (and maybe even bathroom breaks) while cajoling or pressuring the parties into accepting a deal.  This became amply clear to me over the weekend when Boston Globe Magazine profiled a local mediator.  Here’s the picture of mediation the Globe painted for its readers:

Here’s how mediation works: In a civil dispute, going to trial is always risky. Verdicts can either force defendants to pay astronomical amounts or leave plaintiffs without a penny. And so people often decide they’d rather settle — if they can agree on a price. The parties then choose a mediator — both sides must agree on the person — and the process begins, behind closed doors, with both sides stating their cases and demands. Then the mediator separates the two sides into different rooms and begins shuttling back and forth between them. If mediation fails, the parties can agree on another mediator, or the case goes to trial….In mediations, lawyers need someone with a sharp legal mind who’s not afraid to nudge, push, and just plain tell people when they’re wrong…

It’s all there – the shuttle diplomacy behind closed doors, the focus on price, and a process conducted within the long shadow of the courthouse as lawyers wheel and deal. Go read it for yourself. Plainly this tough-headed mediator has earned the title “closer”, brokering deals and producing settlements of the economic and legal issues (if not, perhaps, the less tangible ones). All well and good if that’s what lawyers and their clients truly want – after knowing all the options.  But how can we be sure that the public appreciates the difference, when even journalists – trained, professional observers – miss it?

And so I must also ask – can we really call this “mediation”?

What old-school trial lawyers really think about mediators

what trial lawyers think of mediatorsThe latest issue of the ABA Journal, the monthly magazine of the American Bar Association, just arrived in my mailbox. The cover story profiles “Lions of the Trial Bar” — attorneys over the age of 70 who have indelibly left their mark on the American legal system.

Conjuring up the acrid smell of cigar smoke and the clink of glasses filled with single barrel bourbon, the article pays nostalgic tribute to the heyday of the trial lawyer — the palmy days before trials started vanishing (and, judging from the photos of those featured, before women and people of color were better represented at the bar).

Here’s what one of these old lions had to say about mediation, which I present to you in all its unexpurgated glory:

They’ve invented this new term, litigator. What the fuck is a litigator? I’m a trial lawyer. I try cases. There are some lawyers who do nothing but this mediation bullshit. Do you know what the root of mediation is? Mediocrity!

And as for ADR generally?

The move to replace jury trials with mediation and arbitration, he says, is actually an effort by elitists in our society to control how disputes are decided.

Mediating between law and mediation: time for both sides to declare a cease-fire

Time for ceasefire between mediation and lawLast week I got a phone call from a third-year law student interested in learning more about mediation. Toward the end of our conversation, she told me that her fellow students mocked her interest in mediation practice, dismissing it as “touchy-feely, Kumbaya-singing crap”.

Despite the fact that 21st century legal practice is going to demand more of lawyers than the moot courtroom skills that the first year drills into law students, these students have absorbed the message that negotiation and problem solving hold little value for the practicing attorney. It made me wonder what exactly their law school is teaching them.

Unfortunately, this contempt for and suspicion of mediation is not an anomaly in the law, although fortunately, too, I encounter it with less and less frequency these days as more lawyers are trained in mediation and more law schools teach mediation advocacy and negotiation skills.

Mediators, however, all too often show a similar disdain for litigation, as fellow blogger and mediator Chris Annunziata pointed out just like week, forgetting that the “alternative” in “alternative dispute resolution” denotes choice, and that sometimes court, not mediation, can be the best choice for disputants.

Bridging the divide between lawyers and mediators“, a series of posts I wrote two years ago, confronted this mutual distrust. As introduction I wrote,

Although one field goes so far as to frame itself as an alternative to the other, there is in fact much overlap and common ground between these two seemingly different fields.

There is much that each can learn from the other. Knowledge of one provides a deeper appreciation for the traditions and qualities of the other.

The problem though is that all too often attorneys and mediators view each other as rivals, not partners, in dispute resolution…

My goal is threefold: to help each field better understand and appreciate the other, challenge and debunk some urban legends, and to rehabilitate lawyers and mediators in each other’s eyes.

I propose, in effect, to mediate between mediation and the law.

I think it’s definitely time to rerun this series here on Mediation Channel. Law students, lawyers, and mediators, take note:

Intro: Bridging the divide

Part 1: Valuing the rule of law

Part 2: What mediators can do for lawyers

Part 3: What lawyers can do for mediators

The Complete Lawyer: a new look, a new issue

The Complete LawyerThe latest edition of The Complete Lawyer, a web-based magazine focusing on quality of life and career satisfaction for attorneys but with relevance for dispute resolution professionals as well, is now available. This month’s issue asks, “What Do Savvy Lawyers Do In An Uncertain Economy?”.

The Complete Lawyer features a regular ADR column, which explores ADR from the perspective of four attorneys who mediate – me and three colleagues, Stephanie West Allen of Idealawg and Brains on Purpose, Gini Nelson of Engaging Conflicts, and Victoria Pynchon of Settle It Now Negotiation Blog .  The four of us alternate as writers.

This month’s column, written by Nelson and Pynchon, reminds us that “Savvy Lawyers Value Their Human Capital“.

The Complete Lawyer has a fresh new look as well, and an RSS feed to go along with it, making it easier for devoted readers to follow it.  Congratulations to TCL’s innovator-in-chief, Don Hutcheson, for making an already superb online magazine even better.