The Efficacy Of Agents In Mediation

Introduction and Research Question

An agent is defined as “a person authorized to act on another’s behalf” (Marckwardt, 1980, p. 36). The use of agents, generally in the form of lawyers, in certain arenas of conflict resolution, has been well documented. Lawyers’ roles in litigation, for example, have been concretized. The conditions that are conducive to the utilization of an agent in non-litigation environments, however, seem to be a subject less studied and less certain. This notion holds true regarding third party interventions in general and mediation expressly. The importance of studying the effectiveness of agents in mediation would be particularly significant if measured against the outcomes that result. This paper then poses the following question: how do both the mediation process and the outcomes thereof differ with the involvement of an agent, namely a lawyer, compared with a process that involves the parties acting directly in a self-determinative fashion? In other words, do agents improve or detract from mediation?

Hypothesis

This paper posits that a study examining the involvement of agents/lawyers in mediation will conclude that agents detract from the overall efficacy of the mediation process primarily due to their minimization of the self-determinative element.

Mediation Theory and the Use of Agents

Although the research pertaining to mediation and the use of agents is by no means exhaustive, there are pertinent areas of existing mediation theory that indirectly touch on the subject. By employing an agent, most commonly a lawyer, the principle parties remove themselves from the process at least in some measure. As a result, a foundational aspect of contemporary mediation, namely emotion cannot be adequately addressed. Moreover, lawyers, trained in distributive principles, are generally accustomed, indeed expected to demonstrate a lack of emotion during the litigation process. Conversely, mediation theorists have documented the significance of emotion during an intervention. “In a negotiation, particularly in a bitter dispute, feelings may be more important than talk” (Fisher, Ury & Patton, 1991, p. 29). Employing agents, therefore, seriously impedes the fundamental requisite of adequately dealing with emotion. This could either militate against the possibility of a mutually beneficial agreement, or reduce the level of satisfaction the parties have with the process as a whole or any resultant resolution.

The self-determinative aspect of direct party intervention in resolution theory has been examined extensively. Much of the research indicates that resolutions, particularly those reached by the parties themselves, are less liable to fail, because of a direct correlation to the self-determinative investments made by the parties (Thomas, 1976). A settlement aided or completed by lawyers acting on behalf of the parties may well be subject to dissatisfaction and, therefore, further scrutiny at a later date. In addition, direct communication can also enhance trust which, in turn, can lead to the repair of a ruptured relationship (Pruitt & Kim, 2004). All of this clearly supports the hypothesis that agents are, in fact, detrimental to the overall mediation process.

Existing Research on the Effects of Agents in Interventions

Taking into account the extensive research available in the mediation field, the paucity of study relating to the effectiveness and appropriateness of agents in intervention seems counterintuitive. In fact, upon a further and wider search, only a few relevant articles pertain directly to this subject area. Riskin (1984) authored a piece that focused on the “confusion and disagreement” present in the contemporary mediation field concerning the appropriate use of lawyers (p. 329). The article suggests that a lawyer’s essential role is that of an advocate for their client in an adversarial environment, which can impede his/her ability to adequately support their client’s interests during mediation (Riskin, 1984). Moreover, Riskin indicates the problematic nature of labeling agents either far too rigidly or not at all, which is inconsistent with the fluidity of mediation (Riskin, 1984).

There are, however, several limitations associated with this article. Most ostensible, perhaps, is the age of the piece itself. Written in 1984, much of the facets of Riskin’s arguments are plausible, but do not take into account the more recent phenomenon that now characterize mediation. New approaches such as narrative mediation did not emerge until the late 1980s (Nagao & Page, 2005). Other methods including transformative and insight mediation are even more recent, emerging in 1994 and 2004 respectively (Bush & Folger, 1996; Picard & Melchin, 2007). Consequently, the article cannot, and does not, examine the role of agents in these environments. With the growing popularity of these methodologies, it is essential that additional research be performed on the effectiveness and suitability of agents both within mediation generally, and within these specific styles expressly.

Further examination illuminating the efficacy of agents in third party intervention, is subject specific, and extremely limited. The majority of studies performed in this area concentrate on familial mediations, more specifically, divorce. McEwen, Mather and Maiman (1994) suggest that lawyers can, in fact, play a substantial role in divorce mediation. Moreover, they argue that the lawyers who participate in divorce mediations “offer fresh perspectives on the highly variable character of divorce mediation itself” (McEwnen et al., 1994, p.149). It is not clear, however, on what authority they hold these views, other than perhaps anecdotal evidence, without the true test associated with rigorous quantitative study. Mediation Quarterly provided a questionnaire inquiring into whether or not lawyers themselves believe they are effective in divorce mediations (Harrell, 2007, p. 369). Unfortunately, the results of the study were distorted due to the limited sample size of respondents (Harrell, 2007). The findings also do not take into account the agent’s mentality throughout the process, which could interfere with their client’s interests. For example, at the 1999 American Bar Association’s (ABA) mid-year conference, a group of litigators indicated that “mediation increases lawyers control over settlement, getting their fees paid” (Fisher, 2001, p.1). The comments proffered at this conference provide insight into the question posed in this paper. While lawyers clearly provide their clients with traditional advocacy, it can be self-serving and, perhaps, their efforts are better served in conventional litigation than in mediation. Perhaps the lawyer’s paradigm is not automatically interchangeable with that of the mediator.

Importance of Research Concerning Effectiveness of Agents

The dearth of research and primary consideration dedicated to both the suitability and efficacy of agents in third party intervention to conflict leaves a void in the broader study of mediation. This seems counterproductive to the progression of mediation as an alternative form of conflict resolution. Although the results are suspect, familial-centered mediation seems to be the only focused subset, leaving all other forms of mediation completely bereft of any research in this regard. Moreover, the appropriateness of employing legal counsel in various styles of mediation, such as transformative, insight and narrative-based intervention has not been addressed.

The importance of gathering research regarding the use of agents in mediation is evident when examining the core measurements for success of mediation as a practice of conflict resolution. Empowerment and recognition, as professed by many styles of mediation are integral determinants of accomplishment (Bush & Folger article from mediation). In transformative mediation, for example, empowerment is defined as “points in the process where parties have opportunities to gain greater clarity about their [own] goals, options and preferences…” (Folger & Bush, 1996, 264). Recognition is defined as “points where each disputant faces the choices of how much consideration to give the perspective, view or experiences of the other” (Folger & Bush, 1996, p. 264). The explanation of these dimensions of transformative mediation clearly emphasizes the importance of self-determination on the part of the principal parties themselves, rather than any agent or even the mediator. In fact, the transformative discipline itself highlights that the efficacy of these principles are a correlation to the parties’ “capacities for self-determination” (Folger & Bush, 1996, p. 264). The facets of this style of mediation underscore the need for research in this area. The literature seems to point to the advantages of the parties acting for themselves. Empirical data, however, is not available to either advance or refute these conclusions. The mediation community as a whole, therefore, would significantly benefit from a scholarly examination of the suitability of agents in this realm. This would not only proffer specific tangible data, but could lead to an overall deeper understanding and an increase is the effectiveness of mediation.

Proposals for Research

The manner in which to obtain data pertaining to the suitability of agents in mediation is somewhat difficult. Conducting primary research into the conduciveness of lawyers in a specific style or setting is also an arduous task. There are several proven methods already established for the collection of data. For the scope of this subject matter, it is recommended that an aggregation of approaches be exploited. As a result, a broad spectrum of information can be uncovered. Surveys should be the primary vehicle for data discovery. Often, this method is easiest to implement. The scope and variety of information that surveys unearth can be quite extensive. The care and specificity in the preparation of the survey should enhance the usefulness and applicability of the research garnered. It should also make it possible to compare and contrast the outcomes of analogous circumstances where the only variable is the use, or not, of an agent. It is imperative that the survey population include mediators, agents and the parties themselves in order to incorporate the full range of diverse perspectives. Generally, surveys can answer the who, what, when, where, how many, and how much questions (Yin, 2008). This method, however, neither measures nor controls behavioral events (Yin, 2008). As a result, observations can be used to specifically target the behavioral aspects of the research (Yin, 2008). Surveys and observations combined offer the best prospects for examining the bona fides of lawyers involvement in mediation, as well as which styles of mediation are most conducive to their participation.

Limitations and Conclusion

As with any research undertaking, this study has potential limitations. The dimensions outlined in this paper cover only a narrow range of mediation styles. The broad spectrum of approaches, including more evaluative methods, has not been engaged. Limitations consequential to the data collection methods are certainly possible. Respondents often indicate a preferred, rather than accurate riposte, congruent with the desired outcomes of the study. In conclusion, although the research study proposed in this paper has its limitations, it would undoubtedly prove to be an invaluable contribution to the advancement of third party intervention, and more specifically, mediation. More generalized mediation research and theory seems to concretize the hypothesis proffered in this paper. The significance of emotion in mediation, coupled with the self-determinative benefits, are but a few examples. Riskin’s article highlights the lack of examination pertaining to agents in mediation. Moreover, his findings indicate several issues concerning the inclusion of lawyers in the process. Divorce mediation, however, appears to be an area, in particular, where agents may be helpful. Again, the dearth of focus here makes correlations difficult to posit. It is central to the broader discipline that this gap is satiated in order to facilitate the improvement of the processes overall. This could well lead to an increase in settlements and their sustainability.

References

Bush, R. A. & Folger, J.P. (1996). Transformative mediation and third party intervention: Ten hallmarks of a transformative approach to practice. Mediation Quarterly, 13, 263-278.

Fisher, P.R. (2001). Mediation: What’s in it for litigators. FisherMediation.com, 1-2. Retrieved on March 26, 2009, from http://www.fishermediation.com/library_mediationWhat.php

Fisher, R., Ury, W. & Patton, B. (1991). Getting to yes: Negotiating agreement without giving in, 2nd edition. New York: Penguin

Harrell, S.W. (2007). Why attorneys attend mediation sessions. Conflict Resolution Quarterly, 12, 369-377.

Marckwardt, A. (1980). Standard dictionary. New York: Funk and Wagnalls.

McEwen, C., Mather, L., & Maiman, R. (1994). Lawyers, mediation, and the management of divorce practice. Law & Society Review, 28, 149-186.

Nagao, A. & Page, N. (2005). Narrative mediation: An exercise in question asking. Mediate.com, 1-5. Retrieved on March 25, 2009, from http://mediate.com//articles/paheN3.cfm. Picard, C. & Melchin, K. (2007). Insight mediation: A learning-centered mediation model. Negotiation Journal, 35-52.

Riskin, L. (1984). Toward new standard for the neutral lawyer in mediation. Arizona Law Review, 26, 329-362.

Thomas, K. (1976). Conflict and conflict management. In M.D. Dunnette (Ed.), Handbook of industrial and organizational psychology (pp. 889-935). Chicago: Rand McNally.

Yin, Robert K. (2008). Case study research: Design and methods. New York, NY: Sage.

                       

Jason A. Waxman

Jason is currently the lead mediation researcher for BASESwiki (www.baseswiki.org), an online dispute resolution community focused on satiating the information gap concerning the use of non-judicial grievance mechanisms for companies and their external stakeholders. BASESwiki is a project out of the Kennedy School of Government at Harvard University, under mandate… MORE >