Lawyers, insurance industry managers, risk managers and human resource managers who make frequent use of private mediation increasingly expect mediators to:
- Prepare for mediation sessions, which includes holding pre-mediation discussions with counsel (also increasing the likelihood that counsel will be prepared);
- Permit counsel to have pre-mediation input into the mediation process itself, especially regarding the appropriateness of opening statements;
- Have subject matter knowledge, as well as process expertise;
- Customize the mediation process to tailor it to the needs of the parties and the dispute;
- Use “analytical techniques” and provide “analytical input” to help the parties reach settlement; and
- Be both persistent and patient.
These are a few of the “bottom lines” found in the Final Report recently released by the ABA Section of Dispute Resolution’s Task Force on Improving the Quality of Mediation. The Final Report is based on ten focus group discussions in nine cities, questionnaire responses from over 100 mediation users and mediators, and thirteen telephone interviews with mediation users. The Task Force cautions that its conclusions are relevant only for private practice mediation “involving users who have significant experience in large commercial and other civil cases in which all parties are represented by counsel.”
Interesting tidbits and nuances include:
· Eighty one percent (81%) of the mediation users indicated that in half or more of their cases their goal was to satisfy parties’ underlying interests; this compares quite favorably with the goals of settling the case (88%) and minimizing time, cost and risk (85%).
· The Task Force provides a useful list of twelve different goals for pre-mediation discussions–which, I have to admit, reminded me a little of the long list of subjects that are appropriate for Rule 16 pretrial conferences. Unlike that list, though, this one includes “gain[ing] insight into party interests that might not otherwise become apparent to a mediator until much later, if at all.”
· Lawyers may be more likely than either mediators or parties to be comfortable with mediators’ provision of specific settlement recommendations or expression of opinions regarding settlement terms.
· While 82% of mediation users—mostly lawyers—perceived “exerting some pressure” as important, very important or essential for a mediator to be effective, the same percentage also thought it was important for a mediator to “refrain from pressure.”
The Final Report is available at http://www.abanet.org/dispute/documents/Final_Report_TaskForce_Mediation_Quality.pdf