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What Makes a Mediator Effective? The Need for Empirical Evidence

Jennifer Shack, March 23rd, 2012

As a mediator, I was trained that particular actions I took during mediation would bring the parties closer to settlement in a facilitative process. As a researcher, I know that no one has proven what I was told to do is effective. As a field, we’ve examined the outcomes of mediation, but we haven’t examined empirically the reasons for those outcomes. Now, Gary Weiner, a mediator and administrator for an appellate mediation program, has proposed that we do just that. He has organized a mini-conference on research for the upcoming ABA Section of Dispute Resolution Annual Conference in April that is designed to get participants discussing the possibilities for researching the effectiveness of mediator behaviors.

In preparation for the mini-conference, Weiner has written a very lucid and thought provoking paper that outlines why he believes such research is necessary. He recognizes that gauging whether something is effective should depend on what the goals are. He sees the outline of those goals for each program as the first step in determining whether 1) mediation is effective and 2) what behaviors lead to its being effective. He then notes that research into the effectiveness of particular behaviors has been reliant on mediator self-evaluation or participant feedback, both of which are unreliable methods for assessing what happened in mediation and the causal connection between behavior and outcome, starting with settlement. He’s interested in devising other ways in which mediator behaviors can be empirically tested. Does providing an evaluation of the case really lead to settlement, or is something else the mediator is doing the causal factor?

Research in other fields, most notably psychology, provides promising evidence that mediator behavior can be examined empirically to discover what is effective. I’m looking forward to discussing the possibilities at the conference.  If you would like to weigh in before then, comment here or get in touch directly with Gary at Gary.Weiner@jud.ca.gov.

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7 Responses to “What Makes a Mediator Effective? The Need for Empirical Evidence”

  1. Kent Lawrence says:

    I would suggest a reading of “The Effcts of Neutral, Evaluative, and Pressing Mediator Strategies” by Wall, Dunne, and Chan-Serafin, in Volume 29, Number 2, Winter 2011 of Conflict Resolution Quarterly, might be instructive or at least relevant.

  2. It’s amazing that we don’t really know the answer to this question, do we? A lot of us, including me, talk about what we should and shouldn’t do during mediation, and we feel comfortable doing this even though we don’t really know for sure what works and what doesn’t work.

    Sometimes what works in one mediation might be catastrophic in another.
    And sometimes it seems as though what we do in mediation is we throw a bunch of ideas on the table, because you never know which one might stick with somebody. I’m sure everyone has had the experience of having someone come up to you and say, “you know that thing you said really had an impact on me.” And you can’t even remember what it was that you said, or maybe it was just a meaningless throwaway line to you.

    • Jennifer Shack says:

      Exactly. The fact that what works in one mediation doesn’t in another makes it more difficult to determine what behaviors are effective. And, as Gary Weiner points out, we can’t always rely on the parties to know because so much happens in mediation. For example, that throw away line might have worked because of things you did before saying it. However, researchers can separate out particular actions or behaviors and statistically analyze their effect on a program goal like settlement. That’s where the future of mediation research lies, I think.

  3. Preparation prior to the session is often cited as the reason parties felt comfortable in a mediation session.
    This is especially true in pro se mediations and in parent/adolescent mediations. We have found that when parties feel comfortable prior to the session our settlement rate goes up and our overall evaluations completed at the end of the session also increase. All of my mediators offer an evaluation to the parties and also complete an evaluation (or notes if you prefer) on each mediation so we know how to increase our service. We have not measured mediations based on individual factors such as the style used or other measure. I believe there was a quantitative study done at TCU approximately 6 years ago that measured mediator perceptions that may be of use for this project. I agree with all the previous comments that individual perceptions, personalities and adapted relationship skills are hard to measure. One measure on settlement rate that we found in 2006 that we have not measured since was the effectiveness of mediators who used silence (meaning spoke less) was nearly 25% higher than mediators who offered more suggestions.

    • Jennifer Shack says:

      Interesting information, Laurie. I’m particularly interested in the effectiveness of silence. Do you have a study or methodology you can send me?

  4. […] Court ADR: What Makes a Mediator Effective? The Need for Empirical Evidence blog.aboutrsi.org/2012/program-management/what-makes-a-mediator-effective/ Filed Under: […]

  5. Members of the ISCT have been working on the issue of empirical evidence of mediator effectiveness, and relating effectiveness in practice to the mediator;s goals, for over a decade. Please consider the following publications:

    Antes, J. R., & Saul, J. A. (2001). Evaluating mediation practice from a transformative perspective. Mediation Quarterly, 18(3), 313-323.

    Bush, R. A. B. (2004). One size does not fit all: A pluralistic approach to mediator performance testing and quality assurance. Ohio State Journal on Dispute Resolution, 23(2), 965-1004.

    Della Noce, D. J. (2009). Evaluative mediation: In search of practice competencies. Conflict Resolution Quarterly, 27(2), 193-214.

    Della Noce, D. J., Antes, J. R., Bush, R. A. B., & Saul, J. A. (2008). Signposts and crossroads: A model for live action mediator assessment. Ohio State Journal on Dispute Resolution, 23(2), 197-230.

    Della Noce, D. J., Antes, J. R., & Saul, J. A. (2004). Identifying practice competence in transformative mediators: An interactive rating scale assessment model. Ohio State Journal on Dispute Resolution 19(3), 1005-1058.

    Della Noce, D. J., Bush, R. A. B., & Folger, J. P. (2002). Clarifying the theoretical underpinnings of mediation: Implications for practice and policy. Pepperdine Dispute Resolution Law Journal, 3(1), 39-65.

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