Recently, Susan Yates and I conducted mediation trainings on behalf of the United States District Court for the District of New Hampshire, the New Hampshire Judicial Branch Office of Mediation and Arbitration, and the University of New Hampshire, School of Law.
As part of the trainings, we collected survey data and focus-group-like comments from the training participants. We did this both to provide additional information for the participants and also to test and demonstrate the Stone Soup Project idea of using continuing education programs to generate and disseminate information about dispute resolution practice. The statistical data below is from the survey and the qualitative data is from comments during the training. Also included are some of my analysis and suggestions.
The participants have a lot of mediation experience (both as mediators and lawyers) and we described our plan as having people learn from each other as well as from the trainers. The participants handle a wide range of cases including family and juvenile, torts, civil rights in employment, small claims, and a variety of other types. Program evaluations indicated that they found it very useful to learn from each other in the training.
This post highlights some key findings from this data for the benefit of the training participants as well as readers of this blog. For more detail, you can click on the following links to access a more complete analysis of the data, the survey results, notes from the training sponsored by the federal court, and notes from the state court training. The responses to the open-ended questions in the survey and the comments during the trainings give a real feel of people’s perspectives. We covered a lot of issues, so we didn’t explore any of them in great depth.
A companion post describes the logistics of the data collection process and includes the documents we used, which can be adapted for other continuing education programs.
Most Challenging Problems
We asked people to describe what they considered to be some of the most challenging problems they experience in mediation. This was an open-ended question in the survey, so people volunteered their responses in their own words, which I coded into categories. By far, the most common complaint (with 25 comments) was that parties and/or lawyers were uncooperative, often due to unreasonable expectations. Many people (14) complained about lack of preparation by parties or lawyers, which may cause people to be less realistic and cooperative than if they do prepare seriously. In response to a question about topics they wanted to learn about, the most common request (17) was about dealing with apparent impasse and other difficult situations. These issues deserve serious attention in scholarship and training.
Many survey respondents said that in more than half of their cases this year, all lawyers (or parties) provided substantive mediation memos before the mediation session. This included 46% of people responding about cases in which they participated as mediators and 62% of people responding about cases in which they participated as lawyers. The difference may be due, in part, to the fact that some mediators work with self-represented parties and can’t practically contact them before mediation.
Although lawyers regularly send mediation memos, many people at the training don’t think that they are very helpful – one person called them “useless.” This may relate to the fact that the typical practice in New Hampshire is that the memos generally are shared with the other side, rather than being provided confidentially to the mediators. In other places, mediators also complain about the quality of these memos, so this reaction probably is not due solely to the mediation practice culture in New Hampshire.
Conversations With Mediators Before Convening Mediation
Instead of or in addition to providing mediation memos, lawyers could talk with mediators before they convene for mediation. Only a small proportion of the people responding as mediators (16%) and as lawyers (17%) said that they had such discussions in more than half of their cases. This pattern is somewhat puzzling to me considering people’s frustration with the mediation memos. Phone conversations take less time and don’t result in documents, which lawyers might fear would come back to haunt them – especially if they are candid.
People in the training assumed that if mediators had these conversations, they would talk with lawyers separately, though it would be possible for mediators to have conference calls with all the lawyers. One mediator said that some lawyers (especially less experienced ones) think that private pre-mediation conversations with mediators are not permitted or are wrong. People in the training noted that mediators could be transparent by telling both sides that they are calling both sides to have separate conversations, which would be like having caucuses during a mediation session.
Preparation Before Convening Mediation
People said that lawyers’ preparation of clients is important so that lawyers learn information from clients that they need as counsel. This includes information that might be shared with the other side so they are ready to reach agreement in mediation. Lawyers also can help clients prepare emotionally for mediation and encourage them not to act in an offensive manner.
After a simulation in which lawyer-client pairs met to prepare for a mediation, one person said that this meeting helped them define the issues and the client’s priorities. Another person said it was helpful to find out what the client wanted and do some reality testing about how the client would feel about continued litigation. A third person said that it helped to listen to the client’s anger and then get the client to reflect on the anger without the lawyer having to tell the client to calm down or be reasonable.
Opposing counsel (or “counterpart lawyers”) generally don’t seem to consult with each other to prepare for mediation in New Hampshire. This can be helpful to exchange information so that each side has what it needs to mediate successfully. For example, I noted that lawyers might jointly plan logistics, such as preparing a common set of documents, much like joint preparation for trial. Lawyers also can agree in advance on some terms that would be part of a final settlement.
In our survey, we asked how often there was there a substantial joint session during the mediation with all sides in their mediations during 2017 (not including joint sessions that cover only the process). More than half (52%) of people responding about cases where they participated as lawyers and more than two thirds (68%) of people responding about cases where they participated as mediators said that there were joint sessions in more than half of such cases.
People cited benefits of joint sessions including humanizing the parties to each other; giving parties a chance to be heard; and understanding the issues, the other side’s perspective, and possible paths forward. The big fear is that joint sessions will open a Pandora’s Box of unproductive emotion that can’t be “put back in the box.”
The lawyers may be more afraid of emotions than the parties. Some participants said that joint sessions may be necessary precisely to deal with emotions, especially in small claims mediations. Several people commented that mediators generally prefer joint sessions more than lawyers do. One person said that, as an advocate, she hates keeping parties together, but as a mediator, she wants to be in joint session as long as possible. Another person said that mediators sometimes have to persuade lawyers to have joint sessions.
Frequency and Helpfulness of Mediator Activities
In our survey, we asked about the frequency of the mediators’ actions listed in the survey conducted by the ABA Section of Dispute Resolution Task Force on Improving Mediation Quality. Table 1 presents percentages of respondents who responded that the mediators engaged in certain activities in more than half of their mediations in 2017. We asked people to respond separately for mediations in which they participated as mediators and lawyers. As noted above, the cases handled by the sample of mediators and lawyers differ, which may explain some of the differences in the responses.
The activities in the first three rows of the table (discussing parties’ interests, asking pointed questions, and suggesting possible solutions) generally are not considered controversial, unlike those in the bottom four rows. Substantially more lawyers than mediators reported that in more than half of the cases, mediators recommended specific solutions, predicted likely court results, or applied pressure to accept particular solutions. These differences may reflect, in part, differing caseloads and norms of the samples of mediators and lawyers.
The New Hampshire survey also replicated the questions in the ABA survey about the “helpfulness” of the mediator activities. Thus, rather than describing actual activities, these questions asked people to describe how helpful they believe the activities are. Table 2 compares percentages of reported actual frequency of activities in mediation in more than half the cases and activities that respondents say would be helpful in more than half the cases.
In general, larger proportions of the lawyers said that the listed activities would be helpful than actually occurred in most cases in 2017. The only exception was that there wasn’t a clear difference about mediators recommending a specific settlement.
By contrast, responses by the mediator groups suggested that they thought it would be helpful if the most controversial listed activities would occur less frequently than they report as occurring in most cases. These include analyzing cases, recommending specific solutions, making predictions about likely court results, and applying pressure. The mediator group’s responses suggest that they think it is helpful to ask pointed questions and suggest possible ways to resolve disputes in about the same frequency as occurred in 2017.
Table 3 compares responses of New Hampshire training participants with those of respondents in the ABA study about what activities would be helpful in most cases.
The New Hampshire respondents were categorized based on the role in mediations that they had most often in 2017. Similarly, in the ABA data, respondents were categorized by role they had most often in mediation, though this was not limited to any time period. The “mediation users” primarily were lawyers representing clients.
Results from the two surveys shown in Table 3 are remarkably similar despite differences in the populations and the fact that the surveys were conducted ten years apart. In both surveys, there was broad agreement by mediators and lawyers that it is helpful for mediators to ask pointed questions and suggest possible ways to resolve issues. In both surveys, the lawyers generally want mediators to take certain actions to promote agreements that mediators generally were less comfortable doing. There were similar differences between the lawyers and mediators about the helpfulness of mediators giving their analysis of the case, recommending particular settlements, predicting likely court results, and applying pressure.
Unlike the ABA survey, the New Hampshire survey included a question about the helpfulness of discussing parties’ underlying interests, which the vast majority of mediators and lawyers said would be helpful in most cases.
Dealing with Emotions
Mediators said that they sometimes could not focus on problem solving until parties dealt with emotional issues. People suggested a range of strategies to deal with these challenges. These included acknowledging the emotion and not signaling that there is something wrong with it, for example, by seeming embarrassed. One person said that parties should be reassured that they don’t have to be sorry for expressing emotions. Mediators can help by noting the progress that parties have made. Non-verbal communication can be important, including permitting a period of silence (even though it may feel awkward). If people cry, they should be offered tissues and asked if they want some time or privacy to compose themselves.
Fairness and Giving Legal Information or Advice
People discussed the appropriateness of mediators providing legal information or advice, particularly in dealing with self-represented parties.
Some mediators said that mediators have some obligation about producing a fair outcome. From this perspective, parties need to know what they are giving up so that if, for example, defendants later find out that their cases would have been dismissed, they might be upset. One mediator said she did not advocate giving legal advice but was concerned that a mediation might result in a “miscarriage of justice.”
Parties represented by lawyers can rely on them for legal advice, but this is a challenge for parties who cannot afford or do not wish to hire lawyers. One person said, “I would hope the process begins at the court level informing a self-represented person that you proceed at your own risk when you move without a lawyer.” Another mediator said that he sometimes tells parties in caucus that he thinks the court wouldn’t approve their agreement.
Others are more cautious. One person said that it is hard to know what is fair when parties tell opposite stories. Another said that any information that mediators provide must be correct. Another was concerned that even providing information, such as about the statute of limitations, may reflect the mediator’s judgment and may not be fair.
The people in the New Hampshire trainings grapple with common problems in court-connected mediation in the US these days. Although some of the issues are specific to the practice culture in New Hampshire, many of these challenges arise more broadly. The participants’ reactions reinforced the recognition that problems and solutions in mediation vary greatly in different types of cases. And mediators’ perspectives often differ from those of lawyers who represent parties in mediation.
A major problem is getting parties and lawyers to cooperate in mediation. Of course, that won’t happen in all cases but mediators and lawyers hunger for ideas about how to make this happen more frequently. Professionals may make more progress by focusing more on parties’ underlying interests, an idea widely endorsed by the training participants. If people seem to have unrealistic expectations, it should help to probe the basis of their beliefs.
Helping parties get better prepared before they arrive at a mediation session also may help. The ABA Section of Dispute Resolution produced some very useful guides to help parties get ready. These guides were prepared by an ad hoc group including Tim Hedeen, Howard Herman, Jess Lidsky, Geetha Ravindra, Harrie Samaras, and myself. Lawyers, mediators, and courts who take advantage of the guides by providing them to parties and helping them prepare better may improve the process and results in their mediations.
John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation. The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money. His website, where you can download his publications, is http://www.law.missouri.edu/lande.