A study recently published by the ABA confirms what Simon Mediation has been preaching and practicing for years: the transformative methods used by Simon Mediation are far more effective than coercive tactics used by organizations such as JAMS, other retired judges, and most attorney-mediators.
This ABA report is an analysis of 47 separate studies of mediation and covers a wide array of disputes. Here are the four mediator methods that, according to the study, “appear to have a greater potential for positive effects than negative effects on both settlement and related outcomes and disputants’ relationships and perceptions of mediation.”
1. Seeking Suggestions or Solutions From Disputants
This method is a cornerstone of transformative mediation. In fact, in transformative mediation, ALL suggestions and solutions come from participants other than the mediator. Here’s what the study says about the effects of eliciting suggestions or solutions from the involved parties:
“Eliciting disputants’ suggestions or solutions generally increased settlement. These actions also were related to disputants’ higher joint goal achievement, reaching a consent order, and being less likely to file a post-mediation enforcement action, but were not related… Thus, eliciting disputants’ suggestions or solutions has the potential to increase settlement and to enhance disputants’ perceptions and relationships, with no reported negative effects.”
2. Giving Attention to Disputants’ Emotions, Relationship, and Sources of Conflict
Many mediators try to re-direct the conversation toward what the mediator sees as rationality while disregarding the interactional dynamics of the conflict. In contrast, transformative mediation supports the discussion of whatever aspect of the situation the parties want to discuss, in whatever way they want to discuss it.
A transformative mediator does not decide for the parties where the focus should be and remains entirely comfortable with the often-present hostility. While we don’t go out of our way to dig up anything, we fully support the airing of these aspects as they arise…which they often do.
Here’s what the study says about the benefits of addressing these emotions and sources of conflict:
“Giving more attention to disputants’ emotions, relationships, or sources of conflict generally either increased or had no effect on settlement, and either reduced or did not affect post-mediation court actions. These mediator actions either had no effect on disputants’ perceptions and relationships or were associated with more favorable views of the mediator, the mediation process, the outcome, and their ability to work with the other disputant…
3. Working to Build Trust and Rapport, Expressing Empathy, and Structuring the Agenda
Transformative mediators tend to inspire a very high level of trust and rapport (see the studies on the US Postal Service REDRESS program), but they don’t intentionally work to make that happen as the singular goal. Instead, transformative mediators simply behave in a respectful, trustworthy, non-manipulative way, which has the natural side effect of building rapport and trust. Because transformative mediators pay very close attention to the parties and often reflect back to them the full breadth of the parties’ perspectives, the parties experience the mediator’s empathy strongly. Further, that trust is well-placed — as transformative mediators will not use it to attempt to manipulate, persuade, or nudge the parties in any specific direction.
While praising disputants is not consistent with transformative mediation, the more effective, more genuine practice of remaining nonjudgmental and supportive likely provides even greater results. Effective structuring of the agenda happens in transformative mediation because of the mediator’s sensitivity to supporting the parties’ choices around it. This study says that these sorts of actions “have the potential to increase settlement and to enhance disputants’ relationships and perceptions.”
4. Using Pre-mediation Caucuses Focused on Establishing Trust
Transformative mediators support parties’ choices about pre-mediation caucus, and sometimes suggest it. For example, this may be useful in cases where domestic abuse has been an issue. These meetings tend to establish trust, but again, not because that’s the mediator’s primary goal. Instead, trust is established because the mediator behaves in a trustworthy fashion.
In contrast, note what the study says about how destructive other sorts of caucuses can be (not the sort a transformative mediation would include):
“When used to establish trust and build a relationship with the parties, pre-mediation caucuses increased settlement and reduced disputants’ post-mediation conflict. But when used to get the parties to accept settlement proposals, pre-mediation caucuses either had a negative effect or had no effect on settlement and post-mediation conflict. Thus, pre-mediation caucuses with a trust focus have the potential for positive effects, and those with a substantive focus have the potential for negative effects.”
Methods That Had Negative or No Effects
As opposed to the tactics employed during transformative mediation, the study confirmed that a variety of coercive and manipulative tactics can actually do harm.
Using Caucuses During Mediation Without Establishing Trust
According to the study, “disputants who spent more time in caucus were more likely to return to court to file an enforcement action.” Transformative mediators focus on supporting a conversation and do not carry messages, so using caucus in the ways the study found damaging does not occur.
It makes sense that parties whose mediators use a lot of caucuses are more likely to return to court. This mediation process itself suggests to the parties that an expert (the mediator) believes they can’t handle dealing with one another, making them likely to seek resolution elsewhere.
Pressing or Directive Actions or Approaches
These tactics are clearly non-transformative. According to the study:
“Virtually all studies found mediator pressure on or criticism of disputants either had no effect on disputants’ perceptions and relationships or was associated with more negative views of the mediator, the mediation process, the outcome, and their ability to work with the other disputant.”
Offering Recommendations, Suggestions, Evaluations, or Opinions
It’s very interesting that attorneys who recommend mediators often prefer these methods, despite their often counter-productive results. This accounts for the persistence of these less-effective approaches in the marketplace. The attorneys are choosing what makes them comfortable, as opposed to what helps the parties.
“Recommending a particular settlement, suggesting settlement options, or offering evaluations or opinions had mixed effects on disputants’ relationships and perceptions of mediation – positive, negative, and no effect.”