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.
US District Court, District of Columbia website.
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.
7 thoughts on “Seeking Resources to Promote Pre-Session Preparation in Mediation”
You should never go into a mediation cold turkey. Surgeons and barristers (trial counsel) and anyone working at the human level would never do it. It would be unprofessional.
90% of the success of any mediation is built on the intake part of the mediation process.
In my view mediation starts with the first contact by the mediator with each party, meaning that all the legal protections afforded to mediators start then. So it is not pre- mediation.
Mediation is a humanistic process and it has to be grounded in the human connection with the mediator. The intake is where the mediator connects with the parties humanity, essential for when things heat up later in the process. You can touch base with that humanity at pivot moments.
Parties generally negotiate in the head and settle in the heart except that with family law parties negotiate in the heart and settle in the head.
Pre litigation mediation had become mandatory in India with respect to commercial Court act
Pre- mediation session can be ordered by court in the Czech Republic. However, the pre-mediation session is more about telling the parties a list of information, so that they know what to expect from mediation (what are legal implications of mediation, legal impacts of mediation agreement etc.). It might be useful for the parties to prepare for the actual mediation, however, if mediator is working alone, I would fear that he might lose some aspect of neutrality by meeting separately with each party prior to mediation.
Technology tools for mediators offer support for consistent pre-mediation planning. Case management software should help the mediator with the basics: gather and organize party information, communicate standard information about the process, track ‘to-do’ lists and party ‘homework’ assignments, and even help remind the mediator about topics to consider, like asking about domestic violence concerns in a divorce case. With consistent support on the basics, the mediator can better focus on the distinct elements of each case. In the ABA DR Section Technology Committee monthly meetings we have, or will soon, learn about some of these software tools, such as: an automated intake and case preparation system custom-built on a ‘no-code’ platform that does not require coding skills; the use of Salesforce, a customer resource management software, as a case management tool; dtour.life, which organizes financial information in preparation for divorce; and case management software built for mediators, like ADR Notable, which allows a mediator to create standard preparation checklists for different case types, and then use them in every similar case type, just like a pilot’s pre-flight checklist.
ABA DR Section Technology Committee monthly meetings are open to all. For more information contact Gary Doernhoefer at firstname.lastname@example.org or Prof. Amy Schmitz at email@example.com.
What I wonder is whether preparation has an effect on the perspectives of mediator, the parties, and representatives. Does any pre-session preparation, no matter the form and content, have a salutary impact? What shift in attitude toward the process and toward one another may occur when the various participants take time to reflect on their goals and needs?
That’s a really good question, Michael, especially from someone so committed to reflective practice as you are.
With my social science background, my immediate reaction was to wonder whether some empirical research would show whether there is a significant difference in beneficial outcomes for a group of cases with good pre-session preparation and a comparable group without such preparation.
I don’t know if such research exists. Even if there is such research, it wouldn’t affect my perspective very much unless there really is a robust body of research in many different contexts. There are just too many variables that could affect the results including the particular preparation protocols used and the dynamics between all the individuals involved.
I would be interested in empirical research comparing the efficacy of different preparation protocols. But even so, I would be cautious about generalizing unless the results were replicated across a wide range of contexts. For example, we might assume that providing the same information by video instead of written text would produce more satisfaction for self-represented parties in small claims and family cases, especially parties with low levels of education. Obviously, we should be cautious about generalizing from a study supporting this hypothesis to apply the findings in other cases, such as complex business cases. We also should be cautious about generalizing even for the same population of parties and cases. For example, a study testing a single video might not generalize to other videos considering the variations in content and quality.
In the absence of convincing empirical evidence, I think it’s reasonable to believe that good preparation generally will improve the mediation process and it’s unlikely that preparation often would harm it.
So I would encourage mediators to learn from their own and others’ experiences about what seems most effective in pre-session activities in their cases with the kinds of participants they generally work with.
A useful resource for pre-session preparation is being published by CPR Alternatives in a 4-Part Series on guidance for mediators in addressing Capacity to Mediate.* Equal parts analysis and how-to; full of links to resources, Part 2 is now available to the public, free of charge for a limited time. > > https://bit.ly/CapacityToMediatePart2
When you come across a mediation participant who appears to have impaired capacity to mediate, it’s not a signal to exclude the person from the process. But neither is it ethical to let the process proceed without doing your best to ensure that the person has the capacity to understand the process and exercise self-determination.
The pre-session conference is an ideal time to be attuned to potential deficiencies in mediation capacity, and to collaborate with the individual – and possibly others – to identify obstacles and explore ways to enhance capacity to mediate. The provision of accommodations and/or a support person as planned in a pre-session conference may enable the individual to participate fully in the process and make informed decisions, free of coercion or exploitation.
Topics in Part 2 of the Capacity to Mediate series include: Capacity to Reach Agreement; Revision of the Model Standards of Conduct for Mediators; Some Conditions that Might Affect Capacity to Mediate; Bias, and more.
Co-authors: Judy Cohen, Joan Braun, Lynda E. Frost, and Erica F. Wood
*Lightly modified from its original posting on the CUNY DRC Listserv.