Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.
A recent study out of Columbia University suggests that nice mediators finish last. Inspired by the familiar trope of bickering siblings setting aside their differences to unite against a stern parent, researcher Ting Zhang created simulations in which student participants attempted to reach resolution using text-based chatrooms. Zhang added a further twist to the experiment by introducing computerized participants and/or mediators in some of the sessions (though all participants were told they were interacting with other humans). The participating students were randomly assigned a hostile mediator, a neutral mediator or a nice mediator. Across all of these different scenarios, however, the data showed that agreement was more likely when the participants teamed up against a hostile mediator, and that the quality of the agreements reached was similar to those reached with a nice mediator.
As Professor Jeanne Brett points out in a Scientific American article about the study, the simulated nature of this study prevents it from capturing the true emotional investment the parties make when heading into a mediation session, and therefore, these results should be taken with a grain of salt. Further, Zhang and her co-researchers themselves stipulated that the study was limited in its ability to conclude exactly what “mean” behaviors were more effective than others, as well as how the degree of hostility affected the participants. The context is limited as well. The students were able to negotiate separately from the mediator, something that is not done in a traditional mediation setting. Further, the students did not have a relationship with one another and would not have one in the future. As previous researchers have discovered, context matters.
In considering this research, we should also be cognizant of outcomes. The Zhang study looked only at probability of agreement and the content of those agreements. Other outcomes, which may be negatively affected by hostile mediator strategies, can have a more lasting effect on the parties. In a study of small civil claims in Maryland, mediators who used strategies that may be considered to be “nice,” such as reflecting the parties’ interests and emotions, were more likely to leave the parties with an increase in self-efficacy and their sense that the court cares about them. Conversely, mediations involving neutrals who used strategies that were more directive (though not necessarily hostile) — like offering opinions or advocating for their own solutions — resulted in parties being less satisfied, and less likely to say the outcome was working or that they changed their approach to conflict.
From our perspective as court-connected dispute system designers, we should think about how mediator hostility might have a negative impact on traditionally underserved participants. A recent survey conducted by the National Center for State Courts found, among other things, that people both prefer ADR to the court system, and perceive that people of color and disadvantaged socioeconomic backgrounds face worse outcomes in the traditional court system and within the justice system as a whole. While the use of more stern mediation skills might offer neutrals an effective tool in working with the parties in certain limited situations, I think it’s important to balance that against the broader consequences of how such behavior could work to deny these disputants meaningful access to justice.
Many parties are drawn to mediation as a facilitative and collaborative alternative to the more rigid and top-down venue of traditional litigation. Part of this preference, especially for people of color, can stem from a distrust of and disconnect from authority. If mediators start adopting hostile behaviors, they risk coming off as overly authoritative and paternalistic, alienating those people who look to ADR as an oasis of justice in a desert where they traditionally have been deprived. While I think this research is fascinating and hope it inspires further experimentation with new techniques, I also believe that we should consider the big-picture consequences before tough love becomes a part of the court-connected mediator’s repertoire.
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