Good research about mediation techniques has been hard to find. The costs of observing nuanced mediator behavior and subtle client reactions has been prohibitive. And no one has had a sufficient profit motive to sponsor such research. But the State of Maryland has been getting it done. The Administrative Office of the Courts followed over a hundred day-of-trial ADR processes, surveying parties before, after, and 3 to 6 months after the session. The researchers also observed the sessions and reviewed court records 12 months later to measure the proportion of cases that required further court action. The findings are entirely consistent with the assumptions and experience of transformative mediators. Hopefully, this scientific evidence will help others become more aware of the harmful effects of keeping parties separate and of nudging parties toward agreement. And hopefully this report will increase awareness of the benefits of a skillfully supported conversation. I’ll summarize the findings below, and you can download the full report here below.

(Note the study refers to the intervenors as “ADR practitioners”, not as “Mediators”. The author of the study is implicitly acknowledging that mediator is not the correct term for practitioners who tend to caucus and to use evaluative techniques).

RECOMMENDATION: The author’s recommendation is clear: “An important benefit to ADR is that participants who reach agreements in ADR are less likely to return to court for an enforcement action, thus creating more efficiency in case processing in the District Court. The ADR strategies that best align with these goals are eliciting participant solutions and reflecting participants’ emotions and interests. Caucusing and ADR practitioners offering their opinion or solutions have effects that run counter to these goals. Therefore, this research indicates that the District Court ADR Office may wish to encourage and support ADR practices that focus on eliciting participants’ solutions and reflecting back to participants, and discourage strategies that are heavily focused on caucus and ADR practitioners offering their own solutions and opinions.”

And here is some more detail about the specific findings:

Caucus (i.e., the ADR practitioner meeting with each party separately): More time spent in caucus meant less satisfaction with the process and with the outcome. Caucus also increased parties’ sense of powerlessness, increased their sense that conflict is negative and decreased their feeling that they understood the other party. Further, caucus caused parties to feel that the ADR practitioner “controlled the outcome, pressured them into solutions, and prevented issues from coming out” (p. 6). Caucus had longterm negative effects as well. Months after the mediation, parties were more likely to have a decrease in their consideration of the other person, decreased belief in their own ability to talk and make a difference, and decreased sense that the court cares about resolving conflict. More caucus also led to more likelihood of an enforcement action in court within 12 months. Caucus led to no significant difference in agreement rates. Given that ADR practitioners justify caucus by saying it’s more likely to lead to a settlement, these findings should be taken seriously by anyone who refers parties to “shuttle diplomacy” style ADR practitioners.

Reflecting Parties: The more ADR practitioners reflected back to the parties what they had said about their interests and emotions, the more parties reported that the opposing party took responsibility and apologized. These techniques also increased parties’ sense of self-efficacy (empowerment, in transformative mediation terms), and they increased the parties’ sense that the court cares.

Eliciting Party Solutions: When ADR practitioners “ask[ed] participants what solutions they would suggest, summariz[ed] the solutions being considered, and check[ed] in with participants to see how they [thought] those ideas might work for them,” a lot of good things happened. Parties reported that they listened and understood each other, that they jointly controlled the outcome, and that the other party took responsibility and apologized. This technique also led to a decrease in parties reporting that the ADR practitioner “controlled the outcome, pressured them into solutions, and prevented issues from coming out.” This strategy was the only one  that increased the likelihood of settlement being reached. The longterm effects of this strategy were particularly impressive – these participants were most likely to report that they had changed their approach to conflict, and they were less likely to need to return to court within 12 months.

Offering Opinions: When the ADR Practitioner offered their opinion, advocated their ideas for solutions, and/or offered legal analysis, harm was done. In the long-term, parties were less likely to report that the outcome was working, that they were satisfied with the outcome, that they would recommend ADR, and that they had changed their approach to conflict. The practitioner offering opinions did not increase the settlement rate in any measurable way.

Overall, this study confirms that party-directed, mediator-supported conversation tends to be more helpful in all ways, than do directive and controlling practices by ADR practitioners.

Dan Simon © 2016