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.
