My post, The Critical Importance of Pre-Session Preparation in Mediation, really resonated for some people.
Clearly, pre-session preparation can help everyone involved in mediation to improve the process and outcomes. Many mediators and mediation programs routinely incorporate robust pre-session procedures in their mediation systems.
Roselle Wissler and Art Hinshaw’s empirical study provides some good news and bad news about mediators’ use of pre-session preparation. Many mediators do use such processes, particularly in civil cases, but some don’t. In their study, 66% of mediators in civil cases held pre-session discussions about non-administrative matters with the parties and/or their lawyers in their most recent case but only 39% of mediators in family cases did so. This is due in part to mediation system design constraints making it infeasible or prohibited to conduct such activities. This occurred in 11% of civil cases and 31% of family cases. This suggests that mediators in about 23% of civil cases and 30% of family cases could have conducted such activities but did not do so. This is particularly problematic in family cases because of the disturbingly high frequency of intimate partner violence. Self-represented parties in any kind of case also need extra help, especially if they are mediating for the first time.
This study helps us recognize that there is room for improvement as a substantial proportion of mediators (and probably mediation programs) do not provide any pre-session assistance. Some who do promote pre-session preparation presumably could improve their routines and materials.
In court-connected mediation programs, there should be a “belt-and-suspenders” approach whenever feasible and permitted. Ideally, both courts and individual mediators should arrange for pre-session preparation. Many courts have very limited resources, but if they have websites, they could post materials on their websites with little cost. It’s important that the materials be clear and easy to understand. Ideally, courts, mediation programs, and other mediation sponsors would produce or use short videos to help parties prepare because some people would digest information better from a video than written materials.
Courts that sponsor meditation programs have a moral obligation to prepare parties for mediation, especially when they require parties to attend mediation and the parties are at risk of being sanctioned by the courts. Courts have a special responsibility to help self-represented parties and those who have barriers to using court mediation programs. I discussed this in my post above and Charting a Middle Course for Court-Connected Mediation.
I am collecting resources to improve what we do, and I will post them on the Indisputably blog. Please send me any relevant resources including:
- Publications, including articles for practitioners, law review articles, book chapters etc.
- Rules or protocols for pre-session preparation activities
- Websites of mediation programs sponsored by courts or other organizations
- Written materials to help parties prepare for mediation
- Videos to help parties prepare for mediation
- Any other relevant resources
My post linked above includes links to some relevant resources and I would like to collect and disseminate more. Here are some examples to give you some ideas.
Judy Cohen, How Preliminary Conferences Lay the Groundwork for a Productive Process, 30 Alternatives to the High Cost of Litigation 169 (2012).
Timothy Hedeen, Vittorio Indovina, JoAnne Donner, & Claudia Stura, Setting the Table for Mediation Success: Supporting Disputants to Arrive Prepared, 2021 Journal of Dispute Resolution 65.
Maryland Courts, four-part video series for parties, including Part 3: How to Participate in Mediation. This is part of an extensive website with information and resources about mediation and ADR.
Michele Kern-Rappy, Esq., Senior Mediator and Settlement Coordinator, R.A.I.S.E – To Get to a Higher RoadTM – MED-NJ Mediation Process.
If you know of any websites that collect resources for pre-session preparation, I would be especially interested to learn about them.
Please email any relevant resources to me by January 13.
Thanks very much.