Empirical Research on Mediation Techniques Can Be Useful in Vetting Attorneys and Mediators

09/26/2017 07:37 pm ET Updated Sep 28, 2017

People often complain that they don’t know how to properly vet attorneys. One very effective way is assessing their views on mediation, when they use it, and the mediators they tend to use.

I say this because empirical findings exist regarding “the effects of mediator actions on mediation outcomes.” A Report of the Task Force on Research on Mediator Techniques was published by the American Bar Association Section of Dispute Resolution in June 2017.

This article specifically focuses on divorce and other aspects of family law.

Immediately prior to writing this article, I Googled the panel members who mediate family law matters in California for ADR Services, Inc., JAMS, and Judicate West, three of the largest mediation panels in my jurisdiction.

Eighteen panel members with ADR Services, Inc. handle family law matters, only two of whom are not retired judicial officers. Based upon the information in their profiles, at most, three of the retired judicial officers and one of the attorneys have received more than basic mediation training, which is typically 40-hours. Of those, only one is located in Southern California and none in Los Angeles County.

Thirty-three panel members with JAMS handle family law matters, only six of whom are not retired judicial officers. Based upon the information in their profiles, at most, two of the retired judicial officers and four of the attorneys have received more than basic mediation training, each of whom is located in Northern California.

Eight panel members with Judicate West handle family law matters, only one of whom is not a retired judicial officer. Based upon the information in their profiles, at most, one of the retired judicial officers and the attorney have received more than basic mediation training. Of those, only one is located in Southern California and none in Los Angeles County.

Since mediation is generally unregulated, anyone can call themselves a mediator and any process involving a mediator is called mediation. As such, the ABA Report provides as follows:

The Task Force cast a wide net to identify studies involving any non-binding process in which a third party helped disputants try to resolve any type of conflict.”

In other words, there’s a big difference between a “mediator”, even an “experienced mediator”, and a “well trained and experienced mediator.”

I’m going to ask a question I’ve asked in prior articles: “Do judges become ‘well trained and experienced mediators’ by virtue of being judges?”

Most lawyers and judicial officers believe that mediation is evaluative and are unfamiliar with other forms of mediation.  The following quote from a family law colleague exemplifies that fact:  ‘My commitment to the appropriate use of mediation and ADR tools can be discerned from twenty-five years of regular service to the courts as a volunteer family law mediator and settlement officer, my paid neutral work over the same period , and my resolution of matters for my clients over the last 25+ years with mediators, private settlement conference officers, and plain old negotiation, in addition to adversary litigation.’  This attorney might be very effective at evaluative mediation and for the same reasons would probably make a very good judicial officer.  However, there is a great controversy within the mediation world as to whether evaluative mediation is really mediation. (Stulberg, 1996-1997)
There is no requirement that family law attorneys have any training in Alternative Dispute Resolution.  In fact, family law specialists, Certified by the California State Bar and most everywhere else, are not required to have any educational hours or training in Alternative Dispute Resolution.  Mediation is unregulated in most places, including California. Thus, a person can practice as a ‘mediator’ without ever having received any formal training.
A person claiming to be a mediator even though they had no formal mediation training is the same as a parent saying that they can teach parenting skills because they happened to have raised children of their own. The fact that someone raised their own children does not mean that they had good parenting skills and that they should be teaching others how to parent.
In evaluative mediation, matters are resolved by virtue of having a ‘neutral’ evaluate legal positions and point out the strengths and weaknesses of each side’s case.  In essence, the ‘mediator’ is putting on a Judge’s robe because the ‘mediator’ is helping the parties to resolve the case by pointing out what they believe will happen if the matter were to proceed to court.  Thus, it creates winners and losers, just as occurs in matters that proceed to court.”

Consider the following statement I made in How To Select The Best Mediator Is a Must Read for Everyone:

“The vast majority of family law attorneys use retired judicial officers and the like to mediate family law cases and these are not the skills that judges possess by virtue of having decided cases in a courtroom.”

This certainly explains why ADR Services, Inc., JAMS, and Judicate West are so saturated with retired judges and very few of the mediators on those panels have received much, if any, formal mediation training.

Now, let’s discuss this in relation to the information set forth in the Report of the ABA Section of Dispute Resolution Task Force on Research on Mediator Techniques.

One finding was as follows:

“Pressing or directive actions have the potential to increase settlement, but they also have the potential for negative effects on settlement and related outcomes, and especially on disputants’ perceptions and relationships[, including] more post-mediation adversarial motions being filed....
All studies included in this section examined mediator styles or actions that involved the mediator pressuring the parties in one or more ways. Some of the studies also included in their measure of ‘pressing’ or ‘directive’ styles one or more substantive or ‘evaluative’ actions, such as analyzing the strengths and weaknesses of the case or suggesting a particular settlement.”

So, if you will have an ongoing relationship of some sort with each other through children, or ongoing court jurisdiction after addressing the issues at hand because the children are minors or spousal support is modifiable (which it is absent agreement otherwise), the use of such mediators has some serious potentially negative consequences. Why then, would your lawyer want to use such mediators? That’s an excellent question and the reason I suggest that it’s an excellent question for vetting attorneys.

Another finding was as follows:

“Caucuses during mediation appear to have the potential to increase settlement in the labor-management context, and have the potential for negative effects on disputants’ relationships and perceptions. Disputants who spent more time in caucus were more likely to return to court to file an enforcement action.”

Caucuses occur when the mediator meets with one side at a time. It is also known as "shuttle mediation," meaning that the parties and their attorneys are kept in separate rooms and the mediator shuttles back and forth in an effort to settle the case.

Those who are not “well trained and experienced mediators” tend to engage in “shuttle mediation,” and this includes most retired judicial officers. Meanwhile, consider the following comment expressed by my colleague and friend Rande S. Sotomayor in her article titled Transforming a Mediation into a Positive Outcome for All Parties which was published in the July/August 2017 edition of Los Angeles Lawyer Magazine:

“As usual, the attorneys initially objected to a joint opening session. It typically is an uphill battle with counsel and clients who think a joint session will exacerbate the dispute, prompt a blow-up, or reveal facts they would rather save for trial.”

Rande’s a “well trained and experienced mediator” and therefore understands the importance of joint sessions in mediation. The same can’t be said of all mediators, regardless of their level of experience.

If attorneys typically object to joint sessions and the mediators don’t conduct joint sessions, there is no need to worry about joint sessions. However, what about “the potential for negative effects on disputants’ relationships and perceptions,” including the increased likelihood of their returning to court in the future? That’s an excellent question, which is why I suggest that it’s an excellent question for vetting attorneys.

Yet another finding was as follows:

“Giving more attention to disputants’ emotions or relationships has the potential to increase settlement and to enhance disputants’ relationships and perceptions, but also has the potential to reduce settlement. Addressing disputants’ hostility has both the potential to increase and to reduce settlement....
When mediators used a ‘problem-solving’ rather than a ‘settlement orientation’ style in divorce cases, disputants were more likely to say their co-parental relationship improved and they generally had more favorable views of their mediation experience. When mediators had a ‘relationship’ orientation rather than a ‘settlement’ orientation, defendants were more likely to report their relationship had improved four to eight months after community mediation, but no difference was seen for plaintiffs.... In a study of divorce cases, disputants appeared to be more satisfied with mediation when mediators gave more attention to disputants’ emotional and relational concerns than when they focused more narrowly on the facts to the exclusion of other issues....
Kressel et al., 1994. Mediators with a ‘problem-solving’ style used constructive problem-solving approaches, worked to gain an understanding of relevant sources of conflict and the parties’ circumstances and constraints, and ultimately presented the parties with proposals to break impasse that took this information into account. Mediators with a ‘settlement orientation’ style were primarily concerned with getting a settlement; had a narrow issue focus; did not probe or question the disputants closely about their conflict, circumstances, or needs; and made premature and insistent proposals.”

In case you missed it, a “settlement orientation” style is essentially “soft arbitration”, which is “evaluative mediation.”

Once again, the Report reflects that such a mediation technique isn’t helpful with regard to disputants’ perceptions and relationships. Why then, would lawyers representing individuals who are tied together for life through their children or otherwise utilize such mediators? That’s an excellent question, which is why I suggest that it’s an excellent question for vetting attorneys.

The Task Force also found the following:

“Eliciting disputants’ suggestions or solutions has the potential to increase settlement and to enhance disputants’ perceptions and relationships, with no reported negative effects.”

This, however, is related to a “problem-solving” style and has little to do with evaluating the strengths and weaknesses of a case from a legal perspective or a “settlement” orientation.

Considering, however, that it has the potential to increase settlement and enhance disputants’ perceptions and relationships, why wouldn’t lawyers representing individuals with ongoing relationships retain mediators who utilize such a technique? That’s an excellent question, which is why I suggest that it’s an excellent question for vetting attorneys.

Another finding set forth in the Report was as follows:

“Working to build trust, expressing empathy or praise, and structuring the agenda have the potential to increase settlement and to enhance disputants’ relationships and perceptions.”

Unfortunately, “shuttle mediation” done in an evaluative fashion isn’t about any such things; rather, it’s a “settlement orientation” based upon predictions of the possible outcome should the matter proceed to court.

Under such circumstances, why wouldn’t lawyers representing individuals who will have an ongoing relationship of some sort with each other through children, or ongoing court jurisdiction post-settlement select mediators who work “to build trust, express empathy or praise, and structure the agenda”? That’s an excellent question, which is why I suggest that it’s an excellent question for vetting attorneys.

The Task force also found the following:

“When pre-mediation caucuses are used to establish trust and build a relationship with the parties, pre-mediation caucuses increased settlement and reduced disputants’ post-mediation conflict. But when used to get the parties to accept settlement proposals, pre-mediation caucuses either had a negative effect or had no effect on settlement and post-mediation conflict.”

These are techniques that well trained mediators learn. The first time clients typically meet the mediator selected by their attorneys is at the mediation itself and there are no pre-mediation caucuses, particularly to “establish trust and build a relationship with the parties.”

Considering that such a technique has been found to increase settlement and reduce disputants’ post-mediation conflict, why would lawyers representing individuals with ongoing post-mediation relationships select mediators who don’t do such things? That’s an excellent question, which is why I suggest that it’s an excellent question for vetting attorneys.

While this Report was only released in June 2017, it would be a mistake to believe that such information wasn’t already readily available to those interested in such things. As referenced in the Report itself, the Maryland Administrative Office of the Courts came out with a study regarding child access mediation in January 2016. Moreover, the Report also stated the following:

“Forty-seven studies, thirty-nine involving only mediation and eight involving another process in addition to or instead of mediation, were included in the Task Force’s review.”

Why would attorneys have no interest in the results of any or all of those studies? I believe it’s willful ignorance, which means nothing more than a willful lack of knowledge or information.

As my colleague, Zena Zumeta commented in the Mediation Discussion LinkedIn Group when I shared the Report, “I think it's really helpful information and will be new to most lawyers and mediators. But I also think it will be ignored.”

Furthermore, Buddy Thornton DBA at Grand Canyon University (ABD) commented as follows in response to those who were discounting the Report’s findings:

“As a researcher, I can unequivocally state there is always some level of bias in research, if only from whatever statistical methodology was used compared to other possible methods. True research is not to confirm any pathway forward, but to measure significance or relevance. The report in question states it rather well, and is based on a fairly small sample size because of the nature of the study. Beyond that, Mark is correct. Bias is more inherent from those who ignore or belittle the research. My advice ‘Take from the research what is relevant to your sphere of influence.’ As far as Mark's attorney selection and use of mediators statement, he is also correct. If given a choice, most attorneys would use mediators who would give directive comments, a point that the research shows fails to be embraced by participants.”

Considering that many of us believe that most lawyers and mediators will ignore the findings set forth in this Report, I’d highly recommend that the public utilize the information to vet lawyers and mediators before retaining them and even after retaining them because they aren’t wed to those individuals. There’s more than one way to skin a cat, as they say.

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