Mediation ShopTalk

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From Dwight Golann, this is the follow-up to a great session at the ABA Section of Dispute Resolution meeting.  First, I am linking to the ABA and Goldberg/Shaw studies on Mediator Quality which served as background for the Shoptalk session.  These are both on John Barkai’s website as well.   Second, below are the summaries of the plenary for those who missed it and I’ve attached the powerpoints for the session below.

A Summary of Comments by Professors Attending the

Mediation Shoptalk Session – NYC – April 18, 2009

Note from Dwight Golann: The “plenary” part of the Shoptalk Session consisted of small-group discussions about teaching questions raised by two recent empirical surveys. The findings and questions that kicked off the discussion are summarized on the attached powerpoints.

The following are notes of comments from group reporters on the three issues.

Overall comment:

John Lande, who coordinated the ABA study, warned participants that the ABA Report, like other empirical studies, is “just data,” not necessarily reality. For instance, lawyers who gave the ABA feedback were not always sophisticated about alternatives: e.g., didn’t know about non-caucus options.

1. Empathy/Friendliness

  • Initial questions: Should we try to screen students for empathy? Can we teach this at all? See a Berkeley study on predictors of good judgment and personality
  • Yes we do teach this – for instance, we link behavior to cognitive types. Examples of exercises are to take news item, to put students in shoes of a party, talking about experiences before law school, and in prior interviewing/counseling courses. We do so mechanically and through self reflection. Time on self-reflection, e.g. emotional intelligence assessment tools
  • How to encourage these qualities? Train to act respectful, listen, create a safe space. Put people in role as party, and explicitly ask for feedback from them to the student mediator.
  • Have students talk about real life experiences — about how a conflict arose, etc
  • Also teach when not to be too friendly – not act chipper with people in a crisis.
  • Question: Can you really teach empathy, genuineness? Does making noises really teach it? It may be useful to give the class examples of poor mediations—a good source is the Coben videos at Hamline website.
  • Other tools: A film clip from beginning of A Civil Action w/poor empathy; client interviewing/counseling tape based on Eazy’s Garage from PON w/Mnookin stepping in between roleplays to coach the lawyer
  • Point out to students FBI hostage techniques: importance of showing these qualities in the real world.
  • Tell students it has to be an internal value—or if students say it feels phony, talk about how it feels to do that.
  • Another group questions whether these qualities can be taught at all. Suggestion: Modeling by faculty (including doctrinal) is important; use of taping to give students feedback; practice with listening; presentations of interactions in short stories or books and efforts to understand emotions of fictional characters
  • Problem: what if students see their profs in other courses model non-empathetic behavior? EG: Professor X made a student cry…
  • Another exercise: Ask students to talk to six persons and get answers to Qs
  • In client counseling, Cincinnati does an exercise with hired actors for every student in the second year class. When Marjorie Aaron gets a student with flat affect, she tries to get client feedback for the student, which is very important, coaches them, insists they take dvd of the exercise home. If a student recognizes it as an issue, they will sometimes come back for suggestions.

2. Ethics/Honesty/Integrity

  • Some teachers use ethical scenarios and ask students to play parts. More focused on commercial mediators, so may not apply as much to small claims.
  • Yes one can teach this, but it’s fuzzier. Modeling is important here too: As instructors admit mistakes, and explicitly help students understand and interpret.
  • What is “ethics”? Is impartiality, for instance, an ethics issue? Suggestion: Focus on transparency—clarity about what we are going to do. Ask what we mean by wanting an “honest” mediator.
  • Options:

· Focus on being ethical, more than demonstrating it.

· Ask what integrity/honesty means to individual students.

· Research what it means.

· Ask students to imagine they are plaintiff or defendant in a case before it ever gets to court: what would it be like.

· Look at video examples, again on being, not demonstrating.

· Would grades, etc., incentivize people to pretend to be ethical? If pretending did not transform them, would it have an effect on practice?

  • Question: What is success for various people: in discovery, settlement, conversations.
  • When to teach it? Early, or after putting on various exercises that raises issues?
  • Other options:

· Point out long term implications of what happened during the first week of course.

· Put on a prisoner’s dilemma game, and then add an 11th round.

· Do an online survey of your deviousness, by googling “how Machiavellian are you”?

· Use DONS exercise from PON.

· Review in roleplay whether mediator shaded confidentiality

· Create a reputation index in negotiation classes, where small percentage of grade is based on peer rating.

  • Professor modeling: make a mistake and own up.

3. Preparation and Customization

  • Preparation as what: mediator, advocate, party? Preparation for process or subject matter?
  • An object lesson can have value: Assign an unprepared student to an exercise (in a fishbowl, or a series of unprepared students in each group?) so that the rest of the class can experience what it’s like to be in session with someone like that.
  • There is a tension between giving beginners a model and determining when/how they are free to experiment with modifying it. Very important as mediator to think about context, but it is better for students to have a clear structure.
  • Need to deal with full range of issues – from legal issues/bargaining/emotions-anger
  • One can ask students in debriefing what would have happened if they’d used another model in the same case.
  • Hand out roleplays ahead of time, maybe with checklists or request for a mediation plan
  • Group prep: people playing same role can be told to prepare together
  • If you customize, is there a “script”? One professor assigns a mediator to supervise the preparation process of the lawyer/student

One thought on “Mediation ShopTalk”

  1. When I said that data from the report of the Task Force on Improving Mediation Quality is just data, not reality, I was not questioning the findings of the Task Force study but rather expressing concern about possible misuse of any empirical research. I think that the Task Force research actually provides a pretty good snapshot of the views of experienced litigators and mediators who do civil mediation in the US these days. Although no study is perfect and I am not sure about generalizing the exact magnitudes of the findings to the population of civil litigators and mediators, I think that the overall portrait is pretty nuanced and provides a good general picture of the contours of their opinions.

    I get worried that empirical research can be presented with an aura of representing the “truth” and that some people may infer too much from it, descriptively and prescriptively. It can be hard to convey the complexity and it is easy to oversimplify. For example, the Task Force found that many civil litigators in the study think that a variety of evaluative techniques can be helpful and it would be easy to oversimplify this to suggest that they like heavy-handed evaluative mediation. Although majorities of the sample did find various evaluative techniques helpful, they distinguished between different techniques (eg, suggesting options to consider and predicting court results) and substantial minorities did not think that some techniques were helpful. Moreover, subjects identified a list of factors affecting whether, when, and how such techniques would be appropriate or not. Thus, the findings – and the subjects’ views — are much more nuanced than a simple generalization of favoring evaluative techniques. Prescriptively, I think it is important to be clear that simply because a majority of litigators may want a technique (in some situations), one should not necessarily suggest that mediators use the technique for various reasons, including but not limited to ethical concerns as well as the fact that some litigators or parties might be turned off.

    Of course, all sorts of materials can be misinterpreted, not just empirical research. My reaction at the colloquium was that presenting empirical research can pose special problems of overgeneralization and assumptions that empirical findings are irrebuttable representations of “the truth.” With an appreciation these concerns, I do think it is very helpful to present such data in our teaching and training (which I do). FYI, the Task Force report and related materials are available at http://www.abanet.org/dch/committee.cfm?com=DR020600 and there is a three-page article on that webpage, “Doing the Best Mediation You Can,” which can be easily added to the reading assignments and stimulate good discussion.

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