Mediator's behavior may have little to do with the outcome of a mediation

Is the outcome of a mediation independent of the mediator's, well, mediating? If you are interested in that question, read "Civil Case Mediations: Observations and Conclusions" in the new edition of The Jury Expert.

From the article:

What are the practical implications of these findings? The primary implication - for mediators - is that they should acknowledge that the outcome of the mediation (e.g., agreement or nonagreement) is to some extent independent of the mediator's behavior. This suggestion is consistent with Judge Wayne Brazil's charge that mediators should not exaggerate their responsibility, ability or contribution to the mediation (Brazil, 2007). Rather, they should understand that they are hosting a negotiation process.

I almost missed the invited responses to the article. Just keep scrolling to read them.

I would like to hear how the authors decided whether or not the mediator's behavior affected the outcome. How is behavior defined? For example, could attendance equal behavior? Sometimes just the presence of a third party can have an effect on a conflict. A Mennonite friend told me that's one of the reasons Mennonites send "witnesses" to places where conflict is occurring; they do not say anything but merely watch.

Rita Handrich, editor of The Jury Expert was kind enough to send me the article "Hosting Mediations as a Representative of the System of Civil Justice" (Ohio State Journal on Dispute Resolution) by Judge Brazil. This is the article referred to above—and it's quite an article! No wonder Judge Brazil wrote:

Daniel Bowling, who was kind enough to read this Essay in a couple of its earlier iterations, commented that it is a "radical" version of "mediation" that underlies the views I express in this article.

Here are some quotes from the Brazil article related to mediators' exaggerating their "responsibility, ability or contribution."

No judge or mediator ever settled a case. Neutrals don't make the binding commitments that constitute the settlement agreements; they don't pay or receive settlement money; they don't become parties to the settlement contract. Parties, and only parties, settle cases. Of course judges know this, but the ego-blur that is reflected in asserting that "I settled that case" is not just a product of semantic carelessness. It also

evidences and reinforces a fundamentally misplaced sense of responsibility, i.e., of both credit and duty.

...

There is something deeply arrogant about assuming that we can understand other people and their circumstances more subtly or more reliably than they can, and that we can lead them to places they otherwise could not find. That arrogance is detectable not only by the well-educated or the visibly sophisticated, but also by a very large percentage of people. Once detected, it is not at all likely to inspire respect and gratitude.

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When they sought opinions about the effects of the ADR processes they studied, the researchers from RAND found that the percentage of respondents who reported positive contributions from mediation or early neutral evaluation was consistently and appreciably higher among the neutrals than it was among the lawyers. ... In some instances, the neutrals were twice as likely as the litigators to report that the ADR process had a particular positive effect on the proceedings, such as narrowing liability issues, narrowing nonmonetary issues, or improving relationships between the parties.

I urge you to read this provocative article. E-mail me if you want me to send it to you.

Note: From the descriptions by the authors in The Jury Expert of the kind of mediation being observed for the article, I would conclude that it is not the model I use. I don't mean to say that the results were because of the model or that a model more along the lines of understanding-based mediation would rely more on the mediating of the neutral.

Comments

[Todd I. Stark]

Isn't a mediator essentially the same as a facilitator, in principle? If so then lack of substantive impact is an expected and welcome result. Facilitators are used in meetings mostly to make them quicker and less painful, not to improve the decision. Although coming to decision at all vs. deadlock sometimes seems to be a direct result of facilitation.

From my perspective, the value of a mediator in principle is to: (1) potentially understand the process of coming to agreement better than the participants (although this isn't critical), and more importantly (2) have no stake in an outcome at least with respect to one side vs. the other, and so be able to serve 3rd party procedures that break deadlocks and compensate for mistrust.

If that's true, then the mediator shouldn't have much if anything to do with the outcome, they should mostly reduce the cost and pain of the process.

Or is there more expected from mediation in particular?