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Mediation Study Bolsters Transformative Claims

Institute for the Study of Conflict Transformation by Dan Simon

The Maryland Administrative Office of the Courts has completed a significant study of mediation methods.*  It measured the effects, in parenting disputes, of different techniques. The report strongly supports that methods consistent with the transformative approach are more effective than others at achieving lasting improvement in the situations mediated.  Although this study focused only on parenting mediation, there’s reason to believe it applies to other types of disputes, as well. The study, itself, is available here.

Caucus Does Harm

The study found that a greater percentage of time spent in caucus:

“resulted in participants increasing their sense of hopelessness about the situation from before to after the mediation. In addition, greater time in caucus resulted in participants decreasing their belief that they could work together with the other parent to resolve their conflict or that there were a range of options that could resolve their conflict.”

The study controlled for the parties’ attitudes before the mediation, so this result was not a reflection of tougher cases leading to more caucus.  That is, tougher cases got tougher the more caucus was used, and easier cases also got tougher the more caucus was used.  Paradoxically though, the parties felt better about the mediator, the more time they spent in caucus.  That factor may explain why caucus remains popular:  even though caucus did harm to the parties’ situation, the parties nonetheless felt good about the mediator.  Thus, caucus may be good for business, but it’s bad for parties.

Mediator Directiveness Does Harm

The study tracked directive strategies by mediators: “introducing and enforcing guidelines for behavior, explaining one participant’s position to the other, as well as the mediator providing their opinion and advocating for one participant or the other.”  It found that these strategies led to greater likelihood that parties would later file an adversarial motion.  This finding, as with the Caucus finding, was not simply a correlation between tough cases and adversarial motions.  Adversarial motions were more likely after more directive mediation strategies, regardless of where those cases started out in terms of difficulty.

Reflecting Strategies Lead to Positive Outcomes

The study showed that when mediators provided more reflection and clarification of parties’ statements and when mediators abstained from providing their own ideas and solutions, parties were more likely to:

  • “indicate that the other party listened to them and increased understanding of them through the process”
  • decrease their level of dismissal of the other parties’ perspective after the session as compared with before the session
  • believe “that they could work together to resolve their conflicts and consider a range of options”.
  • Achieve agreements that were highly personalized.
  • Report, 6 months after the mediation, that they could “talk about concerns with the other parent and work as a team in raising their child”
  • Report, 6 months after the mediation:  “prioritization of their children’s needs, a desire to have a positive relationship with the other parent, and a willingness to consider the other parent’s perspective.”

The study also found that greater use of reflective strategies did not decrease the number of consent orders that parties achieved after the mediation.  While not surprising to transformative mediators, this result contradicts conventional wisdom in the legal community that more directiveness or so-called no-nonsense mediation achieves more agreements.

 Conclusion

These findings are not surprising to mediators who have mastered the transformative approach, which fosters direct communication while constantly supporting party self-determination, and which abstains from the harmful directive methods mentioned above. The legal industry continues to use caucus and directiveness in mediation. One explanation for the persistence of those methods is that lawyers, who are in a position to refer parties to certain mediators, remain more comfortable with those techniques.  Also, the retired judges and long-time litigators who are the most popular mediators with lawyers simply haven’t honed the skills necessary to support direct conflict conversation. These factors create a great challenge for the mediation field: the methods that are most helpful to parties remain unpopular with the lawyers who pick the mediators.

*What Works in Child Access Mediation: Effectiveness of various mediation strategies on immediate and long-term outcomes, Maryland Administrative Office of the Courts and Community Mediation Maryland (2015).

 

                        author

Dan Simon

Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served… MORE >

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