The ABA Section of Dispute Resolution Task Force on Research of Mediator Techniques has recently released its report on almost 50 studies that looked at the effect of mediator techniques and actions on (1) settlement and related outcomes; (2) disputants’ relationship or ability to work together and their perceptions of the mediator, the mediation process or the outcome; and (3) the attorneys’ perceptions of the mediation. Although the nature of the studies made it hard to draw broad and definitive conclusions about what works, a few threads could be pulled from their findings. Four categories of techniques were found to have the potential to increase the probability of settlement and improve party relationships and perception of the mediation. Each of the four focuses on the parties in some way, whether eliciting their ideas or building rapport.
Because the studies defined mediator techniques and actions differently, the Task Force organized them into the following conceptual categories:
- pressing or directive actions or approaches
- offering recommendations, suggestions, evaluations, or opinions
- eliciting disputants’ suggestions or solutions
- addressing disputants’ emotions, relationships, or hostility
- working to build rapport and trust, expressing empathy, structuring the agenda, or other “process” styles and actions
- using pre-mediation caucuses
- using caucuses during mediation
Mediator techniques and actions
When looked at as a whole, the studies were mixed in their findings regarding the effect of categories of techniques on outcomes. Because the findings were mixed, the studies provide no clear guidance about which techniques will have a positive effect on outcomes and which will be detrimental. However, a few techniques were found to have the potential to have a positive effect both on settlement and on disputants’ relationships and perceptions of mediation. These are:
- eliciting disputants’ suggestions or solutions
- giving more attention to disputants’ emotions, relationships, and sources of conflict
- working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda
- using pre-mediation caucuses focused on establishing trust
Eliciting disputants’ suggestions or solutions
Five studies looked at the effect of mediators working with disputants to suggest possible solutions, helping them to generate new ideas, or asking them to respond to or evaluate ideas or proposals. None found a negative effect on settlement or on participant relationships or perceptions of the mediation, though they were mixed as to whether they had a positive effect or no effect.
Addressing disputant’s emotions, relationships or sources of conflict
Most of the 11 studies that examined the effect of mediators paying more attention to the relationship/emotional aspects of disputes found that this had a positive or neutral effect on settlement, although a couple of studies did find a negative effect. The effect of these actions on disputants’ perceptions and/or relationships was either positive or neutral. In labor-management mediations, trying to reduce emotional tensions decreased the likelihood of settlement, while attempting to reduce expressions of hostility had a positive effect for labor negotiators, but no effect for management negotiators. If paying more attention to the relationship/emotional aspects of the dispute was combined with proposals for how to avoid the appearance of defeat, settlement was more likely.
Working to build trust and rapport, expressing empathy or praise, and structuring the agenda
Of the 11 studies that looked at the effect of the mediator building trust and rapport or expressing empathy or praise on settlement, only two found a negative effect. The other nine found either a positive effect or no effect. Three studies looked at the effect of these actions on the disputants’ relationships and/or perception of the mediation. These either found a positive effect or no effect.
Nine studies looked at what effect structuring the agenda had on settlement. Only one found a negative effect. The others found either a positive or no effect. Studies suggest that agenda setting should be flexible rather than rigid if it is to have a positive effect on disputants’ perceptions of the mediation.
Using pre-mediation caucuses
Three studies looked at the effect of pre-mediation caucuses on settlement and post-mediation relationship conflict. Their findings indicate that these can be effective, but only if used to build trust with the disputants. They were not effective, and could possibly be detrimental, if mediators used them to encourage disputants to accept settlement proposals.
Guidance for mediators
Despite seeing a trend in the studies that pointed to the potential of these categories of techniques and actions, the Task Force did not feel that there was sufficient evidence to state that these were best practices for mediators. However, enough evidence exists to suggest that the above techniques will not be harmful and may well be beneficial to the goals of mediation.
The Task Force recommends as next steps that the studies involved in this report be made available in a repository that could be built upon and researched more thoroughly. Other recommendations include developing common terminology, definitions, and measures for mediator actions and mediation outcomes to provide more uniformity and consistency across studies so their findings could more meaningfully be compared. Along with this, research needs to be done to test the reliability and validity of mediator action and mediation outcome measures so that future studies produce more rigorous and meaningful findings. All of this can be possible with the collaboration of researchers, practitioners, trainers and program administrators.