The ABA Section of Dispute Resolution Task Force
on Improving Mediation Quality
by Lisa Renee Pomerantz, Attorney at Law
In a prior article in the Suffolk Lawyer, I discussed the preliminary findings of the ABA Section of Dispute Resolution Task Force on Improving Mediation Quality as they were presented at the 2007 Annual Conference of ACR-GNY, the Greater New York Chapter of the Association for Conflict Resolution. At the Conference, several members of the audience raised questions about the wisdom of relying solely on in-house and outside counsel for feedback from users. It appears that criticism was taken to heart, and the use of questionnaires and interviews was extended to the parties themselves.
The Final Report was issued earlier this year and may be accessed at http://www.abanet.org/dispute/documents/FinalTaskForceMediation.pdf. The Task Force focused on the use of mediation in civil disputes of all kinds, including commercial, employment and personal injury cases. Matrimonial, family and community disputes were excluded. The four elements found to be essential to effective mediations were:
- Preparation by the mediators, counsel and parties;
- Customization of the mediation process for the specific dispute;
- Use of analytical techniques by the mediator; and
- Patience, persistence and active engagement by the mediator.
In many areas, mediators and users of mediation services concurred. All saw mediator preparation as essential. Many felt private rather than joint calls to prepare for the session were more effective, as they permitted the parties or their counsel to clue the mediator in on “hot button” topics or the potential risks or rewards of permitting opening statements or using caucuses or other mediation techniques. Conversely, the mediator could use these private calls to establish expectations as to how the parties and their counsel should participate actively and constructively in the process. Mediators could also use these pre-session calls to encourage the parties to view their cases realistically and to consider alternative types of settlement arrangements.
There were some differences between mediators and users of mediation services concerning the utility of certain procedures. Mediators thought mediation could be valuable pre-suit more often than did parties. Mediators saw greater value in requiring the exchange of pre-mediation memoranda than did the parties. (Perhaps mediators thought the “exchange” requirement helped keep the parties honest.) Whereas mediators hesitated to be too activist in encouraging settlement, parties, and especially their counsel, preferred mediators who would recommend specific settlements or apply pressure on the parties to settle.
There were also significant differences between mediators and mediation users on the importance of collateral goals in mediation. All groups considered settlement a central goal. However, while mediation is often touted as providing a way for parties to express their concerns and be heard, parties actually did not consider this a significant goal. Other goals identified as important by mediators, but not by parties, included achieving closure, promoting effective communication between the parties and preserving relationships.
You can learn more about Lisa by visiting her website: www.LisaPom.com