Michael Leathes in his recent  thought provoking post argues for the need for more “field-based” mediation research by which he means actual observations of the live action by skilled researchers.  He poses the questions:

  • “Has the mediation world spent too long developing lab-based facts to suit its theories?
  • Might it start to hone new theories of mediation excellence from field-based facts?” 

These are important questions and I share Mr. Leathes hope that his post will stir a reaction.  Indeed, here’s one now!

While more research on all aspects of mediation is always needed, my concern is that the over-resourcing of field-based research seeking evidence of effective mediation techniques will inevitably result in under-resourcing more import areas of mediation research – areas that would likely lead to increasing the utilization of the mediation process. I am reminded of a quote attributed to marketing expert, Phillip Kotler, “if you chase two monkeys, both will escape” 

My perspective is that of a commercial mediator with more than 4,000 matters mediated over almost 30 years and that of an adjunct professor teaching Mediation Theory & Practice to upper year law students. 

SPINning the Need for Field-Based Mediation Research

I understand Mr. Leathes’ post primarily as an attempt to persuade potential funders of field-based research to open their purses to make funds available. His post invokes the field-based research work of another marketing guru, Neil Rackham into successful techniques in the art of selling – research that led to his 1988 best-selling book, SPIN Selling. 

Ironically, it seems to me, Mr. Leathes’ “sales” approach overlooks a fundamental tenant of SPIN Selling – People buy when the pain of the problem is greater than the cost of the solution.

Using Rackham’s SPIN framework, I’d be curious to know more about the current situation (the “S” in the SPIN acronym) of potential funders that might lead them to consider funding such research.

Next, what, precisely, is the problem (that’s the “P”) that potential funders would be seeking to solve?

Clarity on that issue would lead to identifying the implications (yes, the “I”) of those problems if they remain unaddressed. In other words, what is the pain that will be experienced if the research is not undertaken?

Answering the foregoing questions should lead potential funders to Need-Payoff questions (you guessed it, the “N” – although it does seem a tad contrived).

These final set of questions are designed to have the potential funders connect all the dots and come to their own conclusion that the proposed solution (more field-based mediation research) is the right one for them.

I am highly sceptical that this approach will gain much traction. Why? Well, in part, it’s because I’m predisposed to agree with Greg Rooney’s comment at the foot of Michael Leathes’ post in which Mr. Rooney points out, “that in the complexity of human relationships, within which mediators operate, data is never repeatable.” 

Moreover my own experience, on those many occasions over the years that I have had observers attend my mediations, is that the Observer Effect (the theory that simply observing a situation or phenomenon necessarily changes that phenomenon) works to significantly diminish the chances of repeatable data being obtained. 

ABA Mediation Technique Report

In 2017 the Dispute Resolution Section of the American Bar Association released its Report of the Task Force on Research on Mediation Techniques. It’s an absolute must-read for those interested in mediation research. The Report’s approach was, first, to identify 47 articles or reports containing empirical data examining the effect of mediator actions on mediation outcomes. 

The Report then attempted to correlate seven categories of mediator actions with  three categories of mediation outcomes. 

These are the identified actions:

  1. pressing or directive actions or approaches;
  2. offering recommendations, suggestions, evaluations, or opinions;
  3. eliciting disputants’ suggestions or solutions;
  4. addressing disputants’ emotions, relationships, or hostility;
  5. working to build rapport and trust, expressing empathy, structuring the agenda, or other “process” styles and actions;
  6. using pre-mediation caucuses; and
  7. using caucuses during mediation.

While these are the three outcomes:

  1. settlement and related outcomes;
  2. disputants’ perceptions and relationships; and
  3. attorneys’ perceptions.

The Report’s overall conclusions, from the Executive Summary, are worth setting out in full:

Overall Conclusions. Looking at the relative potential for positive versus negative effects, while bearing in mind the substantial likelihood of no effects, the following mediator actions 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) eliciting disputants’ suggestions or solutions; (2) giving more attention to disputants’ emotions, relationship, and sources of conflict; (3) working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda; and (4) using pre-mediation caucuses focused on establishing trust. Some of these actions, however, have been examined in a relatively small number of studies and in only a subset of dispute types, primarily divorce, limited jurisdiction, community, and labor disputes.

The potential effects of other mediator actions appear more mixed. Recommending a particular settlement, suggesting settlement options, and offering evaluations or opinions have the potential for positive effects on settlement and on attorneys’ perceptions of mediation, but have the potential for negative as well as positive effects on disputants’ relationships and perceptions of mediation. Both caucusing during mediation and pressing or directive actions have the potential to increase settlement and related outcomes, especially in labor-management disputes; but pressing actions also have the potential for negative effects on settlement, and both sets of actions have the potential for negative effects on disputants’ perceptions and relationships.”

In other words, “it all depends”. I highly doubt that further field research will produce significant different results. Certainly the ABA conclusions echo my own anecdotal experience that effective mediating relies on an approach that has the mediator focus on:

    1. Dignity and respect
    2. Genuine Curiosity
    3. High Expectations
    4. A “Yes, and…” philosophy
    5. Optimism and Perseverance

Research, Yes – But In Areas That Will Make a Difference

I sincerely thank Michael Leathes for his post and the discussion I’m sure it will engender. Regular readers of The Kluwer Mediation Blog know that I’m a proponent of finding ways to narrow the gap between mediation theory and practice. As well, I have advocated the collection and dissemination of basic mediation statistics that we currently lack in my jurisdiction (Ontario, Canada) and I suspect many others. Such needed data would include the number of mediations conducted, the settlement rates, the savings achieved through mediation, the cost, etc.  That information could certainly provide evidence to assist policy makers steer a more informed course for the future of mediation; a proven robust dispute resolution process.  

I think there’s little reason to believe that more field-based mediation research focusing on mediation techniques will tell us anything we don’t already know.

Mr. Leathes began his post quoting one famous detective on the need for data. Let me close by quoting another. Hercule Poirot says, “It is the brain, the little gray cells on which one must rely. One must seek the truth within–not without.” (From the Agatha Christie novel, Five Little Pigs (Hercule Poirot #25))


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3 comments

  1. Thanks Rick. A really super article. It is especially helpful to us in Scotland where I co-chair an expert group which is charged with bringing mediation into the mainstream, something Michael tried so hard to help us to do 15 years ago – but was ahead of his time!
    John

  2. Rick, your follow-up post adds spice to the debate, thank you. But I feel you are focusing more on the “how” which I’ll try to address in a later post. I believe the rationale needs to precede the mechanics.

    You ask what the problem is – that’s a “why” point. Well, there are many, but one is that there is woefully little mediation going on in most parts of the world when measured against the number of disputes (as John Sturrock recognises for Scotland). Why? My experience as a user convinced me that parties very often don’t understand mediation and many law firms are not motivated to explain and recommend it to clients until late in the litigation life cycle. I invariably had great trouble getting parties in dispute with my company to agree to mediate early or at all. Many of my corporate counsel peers had the same experience.

    Mediation is not marketed well. There is too little money is the system to permit it. With the exception of an enlightened few, users too often do not believe mediation works, so they do not rank it as the prime dispute resolution choice. Extensive field research will source mediation data from users. That will go a long way towards plugging the credibility gap for mediation. It might belong to the untrendy Newtonian paradigm, but user-sourced data and metrics are highly convincing.

    Another thing that can be aided by field research is data that increases credibility of success measurements (ABA members can get more on this from Ava J. Abramowitz’ thought-provoking article Toward a Definition of Success in Mediation at https://www.americanbar.org/digital-asset-abstract.html/content/dam/aba/publications/dispute_resolution_magazine/summer-2018/10-toward-a-definition-of-success.pdf).

    Once the user-orientated science behind mediation is believable at disputant level, the appetite for mediation will increase. Excitingly, as field data helps mediation earn more credibility as a valuable and prime process choice in dispute management, users will start to see its value outside dispute management – in deal making, a much larger practice area.

    I do not agree that data is never repeatable. Researchers and analysts can combine meta data from different sources to produce perfectly objective and credible results.

    You quote the marketing guru Phil Kotler. It was he who famously observed that people are inclined to pay too much attention to the cost of doing something when they ought worry more about the cost of not doing it.

  3. The Maryland State Judiciary recently helped fund an important field-based assessment of court-connected mediation programs. The study had important and novel design in that it paired pre- and post-mediation questionnaires (including a 6 month follow-up) with live observation and coding of actual mediations. Trained volunteers sat in on mediations and coded for a whole laundry list of mediator interventions (closed question, open question, reflection, directive statements, etc.). The researchers were able to control for the wide range of factors and case characteristics that impact mediations (e.g., gender/race/socio-economic status of the parties and mediator, attorney present or unrepresented parties, experience level of the mediator, participation in previous mediation process, level of conflict between parties, etc. etc.) and isolate what, specifically, mediators were doing in mediation and how that correlated to outcomes and participant views of the process. There are some really fascinating results that I encourage folks to check out. Also, this kind of live, observational study needs to be replicated.
    For the study reports, see: https://mdcourts.gov/courtoperations/adrprojects
    See also the researchers’ recently published paper about their findings relating to Family Mediation in the Family Court Review (Vol. 56 No. 4, October 2018 544–571): WHAT WORKS IN CUSTODY MEDIATION? EFFECTIVENESS OF VARIOUS MEDIATOR BEHAVIORS, Lorig Charkoudian, Jamie L. Walter, and Deborah Thompson Eisenberg.

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