“What`s Going On” in Mediation: An Empirical Analysis of the

WILLIAM GOLDMAN 9/27/2011

For Educational Use Only

“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75

9 Harv. Negot. L. Rev. 75

Harvard Negotiation Law Review

Spring 2004

Article

“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL ANALYSIS OF THE INFLUENCE OF A

MEDIATOR’S STYLE ON PARTY SATISFACTION AND MONETARY BENEFIT

E. Patrick McDermott d1 Ruth Obar dd1

Copyright (c) 2004 Harvard Negotiation Law Review; E. Patrick McDermott; Ruth Obar

Abstract

The use of mediation to resolve a wide range of legal and other disputes continues to increase. As mediation enters the mainstream, business, community, and legal dispute resolution scholars have paid increasing attention to the dynamics of the mediation process. We use quantitative analysis from a large database of cases mediated at the Equal Employment

Opportunity Commission (EEOC) to describe “what’s going on” in the field of mediation.

Using a database of 645 employment law cases mediated under the EEOC’s mediation program, we analyzed various self-reported mediator behavior. We first examined the types of mediator behavior (facilitative, evaluative or hybrid) used by mediators in this “facilitative” program. We then examined whether a particular mediation style resulted in a higher participant satisfaction rating across procedural due process and distributive variables, whether a particular style resulted in a

*76 higher settlement agreement, and whether representation affected the amount of money obtained in mediation.

The findings of this study have important implications for the practice of mediation and the academic debate surrounding the issues of mediator style and dispute resolution program design. Our results show that: (1) both the charging party and the respondent rate facilitative mediation more favorably than evaluative mediation; (2) evaluative mediation results in a higher monetary settlement; (3) mediation models that limit the role of representation are inherently suspect; and (4) it is a challenge for a facilitative program to prevent some mediators from using evaluative techniques.

I. Background

In 1994, Professor Leonard Riskin published the first of two articles describing his view of the dynamics of the mediation process, commonly referred to as “The Riskin Grid.” 1 He recognized that there was no comprehensive or widely accepted system for classifying mediator conduct.

2

Riskin’s Grid contains four quadrants describing the mediator’s orientation. These quadrants are based on two continuums.

One continuum, concerning the mediators’ activities, ranges from pure evaluative to pure facilitative mediation techniques.

3

The second continuum, concerning the goals of the mediator, measures the scope of the problem or problems that the mediation seeks to address or resolve.

4 Our research is primarily concerned with the facilitative-evaluative continuum.

Riskin observed that it was necessary to describe what mediation “is” as opposed to what it “ought to be” because such information will influence the selection, training, evaluation, and regulation of mediators and mediation.

5 Controversy arose over Riskin’s recognition that, under the appropriate circumstances, evaluation is a part of mediation.

6 Our research attempts to describe what is occurring in *77 employment mediation at the EEOC with regards to mediator style and dispute resolution program design.

We believe that our findings will cause many to reconsider the narrow parameters of the facilitative-evaluative debate and move to a new objective reality based on what mediation is, not what it is claimed to be. Our results seek to cause many to

© 2011 Thomson Reuters. No claim to original U.S. Government Works. 1



“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 rethink the dynamics of the mediation process. First, we establish that, regardless of the mediator’s style, mediation without representation is significantly less financially rewarding than with representation. Second, we show that facilitative mediation, while clearly producing a higher satisfaction rating for both parties in almost all procedural due process and distributive measures, results in much less money obtained in settlement. These and other results provide great insight into the mediation process. They aim to be of immediate assistance to policy makers, legal counsel, scholars, trainers, practitioners, and the parties themselves.

II. The Debate Over the Role of Evaluation in Mediation

Critics of Riskin’s grid argued that the evaluative mediation conduct contemplated by the grid was unethical and was either not mediation or would undermine the unique role of mediation under the law.

7 This sparked a debate over the appropriateness of evaluation in mediation that has been played out in scholarly articles, in the classroom, in the legislative arena, in bar association ethics committees, and at professional conferences.

8 In one camp are mediation purists who argue that mediation should not include evaluation.

9 Some purists contend that it is the unauthorized practice of law. An opposing camp argues that it is unrealistic to demand that mediation be purely facilitative in nature.

10 Many in this latter camp see mediation as a mixed process, often involving both facilitative and evaluative conduct.

We believe that this debate sidesteps any consensus as to what actually occurs in mediation. Scholars and practitioners argue, often *78 past each other, at the expense of first understanding what is happening in mediation. Many have embraced theories and taken positions against other theories of mediation without any empirical basis. We seek to provide this empirical information.

III. The Absence of Empirical Evidence in the Debate

In recent years, scholars such as Ellen Waldman have remarked on the lack of empirical evidence in the facilitative-evaluative debate, observing that “no study to date has examined disputant satisfaction when participating in an evaluative mediation as opposed to a facilitative mediation.” 11 In his defense of a mediation style that included both evaluative and facilitative mediation, Jeffrey Stempel argues that “[d]isputant satisfaction is an important factor for measuring mediation but so is the substantive quality of outcomes.” 12 Stempel suggests that if one measures mediation by customer satisfaction, facilitative mediation may be favored. However, he posits that for those participants who focus on the resolution of the dispute, evaluative components should be more favorable to the disputants.

13 Stempel notes that “a real knowledge of how well or poorly various ADR methods work in practice” is missing in the debate and related discussions.

14

He states that it behooves the profession to learn more about disputants’ views on ADR outcomes and that much remains to be done.

15 John Lande notes, “[M]ediation statutes, codes of conduct, texts, promotional literature, even law review articles are full of assumptions about the essential nature of mediation.” 16 He observes that there are many assumptions in the field of mediation that may not be accurate.

17

In one of the few studies of what actually takes place in mediation, Dwight Golann observed the tactics of mediators in mock mediations.

18 He concluded that mediators do not maintain a consistent style. In general, they start off in a broad facilitative mode and later move into some evaluative conduct. While admittedly a narrow study *79 involving four neutrals working on one dispute, Golann observes that “[u]nderstanding how and why legal mediators change their approaches and goals will help us to develop a more sophisticated theory of how mediation supports the negotiation process.” 19

According to a U.S. Department of Justice study, the type of mediation style does not influence the outcome of the mediation or the perception of the disputants about the mediation process.

20 The author, Daniel McGillis, conducted a comprehensive review of research on various community mediation programs. He concluded that:

...the different approaches used by a wide variety of programs tend to result in roughly similar outcomes in terms of the proportion of mediation sessions resulting in agreements, favorable attitudes toward the process by disputants, and related measures. These findings suggest that community mediation can work quite effectively regardless of the specific style of mediation adopted.

21 In contrast, our results in employment mediation indicate that style does in fact matter.

IV. What’s Going On?

Using one of the largest existing databases on mediation dynamics and results, this paper will fully describe how the parties




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 and the mediators perceive the mediation process. We identify the mediator styles that are used in EEOC employment mediation. We then address the issues of which mediation style results in the highest participant satisfaction ratings and which mediation style results in the most money obtained at settlement. We examine the critical role of representation at mediation. In addressing these and other issues we provide a rich source of data that enables one to better understand what is going on in mediation with regards to the relationship between mediator style and mediation “success,” as measured by settlement and satisfaction.

*80 V. Research Questions

Implicit in the debate over mediator behavior are the assumptions that mediators have styles that can be classified; mediator behavior is consistent with a professed style; one can clearly identify mediator conduct as evaluative as opposed to facilitative; and one style of mediation is better for the participants than another. However, this debate has lacked any empirical evidence to assist in this inquiry. The following research fills that gap.

We will identify and categorize the various techniques employed by the mediators that, in the mediators’ opinion, were important in resolving the case. This research attempts to clearly identify what constitutes evaluative and facilitative techniques, how these techniques affect participants’ perception of the process, and how they impact the outcome of the case, as measured by the monetary settlement. We ask and answer the following questions:

1) What factors influence the amount of money obtained at mediation?

2) Which mediation style yields more money for the charging party?

3) Does representation influence the amount of money obtained in mediation?

22

4) Which mediation style compares more favorably across a range of procedural due process measures?

5) Which mediation style compares more favorably across a range of distributive measures?

6) Which mediation style results in the party reporting that they obtained what they wanted from the mediation?

7) Which mediation style results in the party being willing to participate in mediation in the future?

8) Is an entirely facilitative mediation realistic?

VI. The Literature - Evaluation Versus Facilitation

In order to determine how facilitative and evaluative techniques are being used in mediation, we first had to identify these techniques. We note at the outset that there is no consensus in the field regarding the exact characteristics of facilitative versus evaluative mediator *81 conduct.

23 We present an overview of the literature. We then classify mediator behavior for our analysis.

A. Facilitative Mediation and Its Advocates 24

1. Bush and Folger

Robert A. Baruch Bush and Joseph Folger advocate a form of facilitative mediation known as transformative mediation.

25

They see the mediator as a process person who does not contribute any information to the process other than agenda structuring.

26

Transformative mediation takes a “social/communicative view of conflict .” 27 Thus, transformative mediation posits that the transformation of the negative interaction between parties in conflict into a positive relationship based on mutual empowerment and recognition is what matters most to the parties, even more than the particular terms of a settlement.

28

Mediator conduct in this style includes facilitating “recognition” by each party of the other party’s vantage point.

29 Such conduct includes paraphrasing and reframing to encourage complementary validation.

30 Bush and Folger oppose any evaluative conduct, believing that evaluative mediation undermines such validation and also inhibits creativity in the mediation problem-solving process.

31 Bush and other facilitative advocates such as Kovach and Love, believe *82 that




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 evaluation necessarily involves mediator coercion and pressure.

32

2. Kovach and Love

Professors Kimberlee Kovach and Lela Love are prominent proponents of facilitative mediation. They entered the debate by excoriating evaluative mediation, arguing that it is not mediation but rather some other type of dispute resolution process. In

1996 they stated:

Mediators should encourage parties to evaluate suggested options and alternatives and the viability of potential agreements.

Mediators should also encourage parties to get outside advice, opinions, and evaluations from appropriate experts. But mediators should not do these things themselves. “Evaluative” mediation is an oxymoron.

33

In 1997, Love argued that the “roles and related tasks of evaluators and facilitators are at odds” and require the use of

“different skills and techniques, . . . different competencies, training norms, and ethical guidelines . . .”

34

Kovach and Love appear to depart from Folger and Bush’s description of facilitative mediation as agenda structuring that avoids any mediator coercion or pressure. Kovach and Love support the use of some evaluative behavior in mediation. They state that so long as the mediator does not take an actual position, as would a judge, arbitrator, or neutral expert, this conduct is reconcilable in a pure facilitative mediation model.

35 For example, they claim that the following activities, while admittedly evaluative, are appropriate as “essential parts of a mediator’s facilitative role . . .” 36 These activities include: 37

*83 reframing; structuring of the bargaining agenda; probing of assessments and positions; challenging proposals; urging parties to obtain additional resources or information; suggesting possible resolutions (for the purpose of stimulating parties to generate options); and reality testing or checking.

38

According to Kovach and Love, if these activities are motivated by and result in the stimulation of party evaluation and decision-making, they “comport more with a facilitative orientation.” 39 Thus, in the opinion of Kovach and Love, a mediator is defined as having an evaluative orientation only when he or she has an “attitude or identity of being an evaluator

(evaluative orientation) or when he asserts an opinion or judgment as to the likely court outcome or a ‘fair’ or correct resolution of an issue in dispute (evaluative conduct).” 40

Kovach and Love believe that as long as the mediator does not give an opinion on the merits/damages due to a party, all other mediator opinions, assertions, challenges, and actions are acceptable in a facilitative mediation.

41 The mediator must not

“‘answer’ the question posed by the dispute” or the mediator would be engaging in improper evaluative conduct.

42

Thus, it appears that Kovach and Love would classify as facilitative any conduct short of a direct answer to the question posed by the dispute. They appear to believe that such conduct is consistent with the definition of a mediator as one who

“facilitates communications, promotes understanding, focuses the parties on their interests, and seeks creative problem-solving to enable the parties to reach their own agreement.” 43

Love describes the role of the mediator as that of a facilitator who: guides and enhances communication; generates and supports collaboration and problem-solving;

*84 encourages more optimal outcomes that maximize the benefit to both parties; captures and clarifies agreements; provides frameworks for parties that do not have legal information;




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 steers parties to sources of relevant law; and presses parties to search for optimal outcomes and not to accept the first acceptable proposals put on the table.

44

Love opines that conduct such as setting the agenda and reality testing is “a necessary part of facilitation.” 45 What is somewhat unclear in this debate is that, while Kovach and Love appear to permit almost all evaluative conduct short of a liability/damages assessment, they continue to argue that “evaluation and facilitation are radically different activities.” 46

3. Stulberg

Joseph Stulberg argues that facilitative concepts of empowerment, participation, and the freedom to develop or reject proposed solutions are “denigrated and undermined” when the mediator becomes evaluative.

47 According to Stulberg, mediation should be solely a facilitative process “designed to capture the parties’ insights, imagination, and ideas that help them to participate in identifying and shaping their preferred outcomes.” 48 Furthermore, he does not see this debate as a

“terminological quibble,” arguing that “considerably more is at stake.”

49

Stulberg believes that this debate is occurring on a foundation of quicksand.

50 He believes that the weakness in the facilitative-evaluative debate is in the description of what constitutes facilitative conduct.

51 Thus, while a proponent of the facilitative style, he disagrees with Riskin’s description of that conduct. Stulberg believes that a facilitative mediator can be firm, forceful, imaginative, creative, active, and focused. In addition, Stulberg believes that a facilitative *85 mediation can aggressively prod the parties to reconsider a position, actively restructure the agenda, and challenge unworkable or misleading proposals - all within the context of a facilitative mediation.

52 According to Stulberg, as long as a mediator does not undermine party participation and their efforts at imaginative problem-solving, the mediator can engage in a wide array of conduct that others would call evaluative.

53 This conduct even includes suggesting a particular settlement.

54 Thus, one of the problems that Stulberg has with evaluative mediation as described by Riskin is that he believes that facilitative mediation involves bargaining that requires conversation, dialogue, and interaction with perceived opponents with requisite fundamental respect for one’s counterpart.

55

While apparently permitting a facilitative mediator to engage in a wide array of evaluative behaviors except pronouncement of a formal opinion of the value of the case, Stulberg argues that the distinction between facilitative and evaluative is important.

56 He notes that only a facilitative mediator, as he defines this term, “is in a position to ground an approach to problem-solving that anchors the behavior and principles of her performance in a manner consistent with consensual decision-making.” 57 According to Stulberg, critics believe an evaluative mediation undermines the parties’ understanding of each other and their ability to develop their own resolutions.

58

B. Evaluative Mediation

1. Riskin

Leonard R. Riskin posits that “the mediator who evaluates assumes that the participants want and need her to provide some guidance as to the appropriate grounds for settlement - based on law, industry practice or technology - and that she is qualified to give such guidance by virtue of her training, experience, and objectivity.” 59 Thus, an evaluative mediator helps the parties to understand the strengths and weakness of their positions and the likely outcome of litigation or whatever other process they will use if they fail to *86 reach a resolution in mediation.

60 According to Riskin, mediator techniques that are associated with evaluative mediation include: 61 assessing the strengths and weaknesses of each side’s case; predicting outcomes of court or other processes; proposing position-based compromise agreements; urging or pushing the parties to settle or to accept a particular settlement proposal or range; educating herself about the underlying interests; 62 predicting the impact of not settling; and 63 developing and offering proposals.

64 Riskin notes that much of this evaluative conduct occurs in private caucus.

In response to those who claim that evaluative mediation is not mediation, Riskin replies, “It is too late for commentators or mediation organizations to tell practitioners who are widely recognized as mediators that they are not, in the same sense that




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 it is too late for the Pizza Association of Naples, Italy to tell Domino’s that its product is not the genuine article.”

65

2. Lowry

L. Randolph Lowry notes that while there is a lack of consensus as to what constitutes evaluative versus facilitative conduct, it is accepted that evaluation includes “a range of activities such as expressing an opinion about a party’s case, recommending a resolution, or predicting the ultimate outcome if the case were to be resolved in another forum.” 66

3. Lande

John Lande argues that it is no longer possible to define mediation in a way that excludes evaluative conduct.

67 Many other scholars have stated the same.

68 Lande further notes that a more useful framework to view these issues is that of the quality of participant *87 consent. Thus, mediator expression of an opinion, which may be classified as evaluative, is not as important as understanding how this behavior is done and its effect on the quality of the party’s consent.

69

4. Waldman

Ellen Waldman, an advocate of “therapeutic mediation,” notes that many mediators and theorists support evaluative mediation because they believe that it generates fairer and more equitable agreements, thereby being more therapeutic for society generally.

70 Since mediation encourages party autonomy, this results in agreements that are needs-based.

71

C. Eclectic Mediation

1. Stempel

Professor Jeffrey Stempel has observed that “the definition of mediation according to the facilitative-evaluative dichotomy is unrealistically formalistic as well as theoretically and empirically erroneous.” 72 Stempel argues that this split is reflective of two other divisions in the ADR and legal community.

73 They are the procedure-substance split and the disputant satisfaction-just outcome split. Thus, persons who are in the procedure camp tend to see procedure as more important or as important as substance.

74 Those in the satisfaction camp see a good resolution as one where the parties walk away satisfied while the just outcome camp see a good resolution as one that reaches a substantively good result.

75

Stempel notes that facilitative mediators tend to be in the satisfaction camp while evaluative mediators tend to be in the results camp.

76 He proposes that one way to reconcile the facilitative-evaluative tension is to recognize that some disputes are more amenable to a facilitative approach while others are better suited to a “more evaluative” approach. He deems this more evaluative approach as “eclectic mediation with more evaluative events.” 77 Stempel observes that while scholars call for a strict dichotomy wherein evaluation does not *88 occur and facilitative conduct cannot co-exist, there is common ground among mediation practitioners that mediation cannot be divided into facilitative and evaluative categories but rather encompasses both. He labels this common ground “eclectic.” 78

Stempel initially proposed a facilitative-evaluative continuum based on the type of dispute mediated.

79 Employment law disputes and civil rights disputes are placed on the evaluative side of the continuum, surpassed only by statutory interpretation. He then abandoned this approach in favor of one that is context-specific, taking into account: the past relationship of the parties; current relations; prospects for future relations; the stakes of the dispute; the certainty or uncertainty supplied by the legal regime; the divisibility of the matter at stake; the substitutability of items at issue;




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 the political, public opinion, and social climate; and the personality of the parties.

80

Stempel rejects pure facilitative mediation as impractical and unworkable in practice. Stempel also rejects the facilitative camp’s claim that evaluation is inherently coercive.

2. Birke

According to Richard Birke, mediation involves both facilitative and evaluative techniques.

81 Birke notes that “[a]ny mediator who believes that any mediation of a legal dispute can be entirely facilitative or entirely evaluative and still settle is suffering from a delusion.” 82 To Birke, these distinctions and self-identification into the two camps serve little purpose.

3. Levin

Murray Levin notes that there is no single accepted definition of mediation. Regarding evaluative mediation, he explains that the concept flows from the belief that disputants can benefit from a qualified neutral’s guidance regarding substantive issues and the merits *89 of each party’s position.

83 Levin notes that the facilitative/evaluative nature of mediation is best viewed as a continuum. Besides offering outright opinions on the merits of the case, Levin identifies evaluative mediator conduct as including discussion of the weakness of a position, the cost of litigation, and an explanation of the law as evaluative conduct.

84

4. Weckstein

Donald Weckstein posits that a mediator can engage in clearly evaluative conduct - providing an opinion, evaluation, suggestion, recommendation, prediction, or other pertinent information or advice - so long as such evaluative conduct enhances party self-determination.

85 Weckstein argues that notwithstanding the opinions of commentators and the statements of ethical standards for mediation, there are situations where a mediator should give an “opinion, evaluation, suggestion, recommendation, prediction, or offer pertinent information or advice.” 86

VII. The Research

This paper is based on data from our comprehensive study of the EEOC mediation program. Our first study was a comprehensive study of charging party and respondent opinions regarding various procedural and distributive elements of the

EEOC mediation program.

87 Our second study addressed mediator feedback on the dynamics of the mediation process, including participant (charging party, respondent, mediator) conduct that facilitates resolution of the dispute, 88 reasons the dispute was not resolved, mediator tactics, behaviors that act as barriers to a resolution, the role of legal counsel and other representatives, and the turning point(s) in a successful *90 mediation.

89 Mediator evaluations of the skills of the parties’ legal and non-legal representatives were also highlighted in the report.

A. The Subjects and Sampling Technique

The participants in this study include all charging parties, respondents, and mediators who conducted a mediation session for the EEOC under the supervision of the fifty EEOC field offices, from about March 1 to July 31, 2000. The sampling technique captures all mediations conducted during this period so that the profile of the sample is the same as the profile of the overall population of the EEOC cases. The results from the first study verify that the profile of this sample is completely consistent with the overall profile of EEOC mediations.

90

B. Research Protocol

The research protocol required the charging parties, respondents, and mediators to complete the surveys at the end of each mediation session, place the completed survey in an envelope, seal the envelope, and forward it to their local ADR coordinator. The ADR coordinator for each office then forwarded the packages to the research team. Anecdotal evidence suggests that in a very few cases the protocol has not been strictly followed; for example, the envelopes were not sealed or the mediators filled out the survey in front of the participants. The research team does not consider these breaches to have had a measurable impact on the overall data set.

C. The Survey Instruments





1. The Charging Party and Respondent Satisfaction Survey

The survey is a twenty-two-item survey that included fourteen five-point Likert-type responses ranging from strongly disagree (1) to strongly agree (5).

91 The survey used a Likert scale because evidence exists that it is superior to other measurement formats in measuring *91 attitudes and because its underlying factorial structure is more stable across situations and cultures.

92 Of the remaining eight questions, five are primarily “yes or no” questions, two are open-ended questions, and one is a multiple-choice question. One open-ended question gave participants who did not resolve their claim a chance to explain why they thought there was no resolution of their charges. The second open-ended question gave participants the opportunity to offer suggestions for improving the mediation process. The multiple-choice question sought to identify the mediation status of the participants. A pretest established that, for most participants, the survey took about five minutes to complete.

2. The Mediator Results Survey

The Mediator Results Survey has eleven significant questions.

93 Some of these significant questions include subparts. The first set of questions addresses the characteristics of the mediation. The remaining questions seek information from the mediator regarding the conduct of the parties at mediation; the resolution status of the mediation; participant actions that contribute to or interfere with the resolution of the dispute; the mediator tactics used to resolve a dispute; what the mediator would have done differently in those mediations where the dispute was not resolved; the skills of the parties’ legal and non-legal representatives; barriers to the resolution of the dispute; turning points in the mediation; and process improvement suggestions. With the exception of the questions pertaining to the characteristics of the mediation session and the skills of the representatives, all questions are open-ended. The open-ended questions were designed to maximize mediator feedback. As a result, the mediators provided a wide range of personal opinions, insights, comments, and ideas within their answers that expose numerous non-obvious patterns that would not have been discovered if the survey utilized closed-ended questions. In many instances, a mediator conducted several mediations and conscientiously filled out the survey for each of these mediations. This reinforces the researchers’ assumption that all of the mediations provide a unique glimpse into the conduct of the parties, the dynamics of the process, and the mediators’ opinions on the resulting outcome. This also suggests that the mediators deem each mediation session to be unique.

*92 All of our measurements in this paper reflect outcomes that are observable at the time of the mediation. Pruitt et. al. define these as a ‘short term success.‘ 94 We do not measure long-term outcomes such as compliance with the agreement, improved relations between the parties, and the absence of new problems between the parties.

95

D. Data Coding and Analysis

We asked each mediator to complete the Mediator Results questionnaire for every one of his/her mediations. The data from the open-ended questions were team coded. In order to ensure greater inter-rater or inter-coder reliability, the coders worked side-by-side throughout the seven months of the coding process. This part of the process involved hundreds of hours of coding. Each survey was read in its entirety and, in many cases, by both coders. In some cases the coders read a survey, wrote down a set of ideas or working codes, and then discussed the interpretation until a consensus was reached which was then classified accordingly. In the majority of cases the mediator was extremely articulate and clear in providing answers, thus making the interpretation of the data simpler and less subjective.

E. The Database

Our database for analysis of participant satisfaction vis-à-vis mediator behavior consists of 645 mediated cases.

VIII. Research Results

A. Mediator Conduct and Its Impact on Party Satisfaction and Selected Outcome Measures

1. Mediator Behavior 96

We looked at the actual mediator’s conduct in each case and classified the mediator’s tactics as either evaluative, facilitative, or hybrid. It is important to remember that these are the tactics that are reported by the mediator. Our survey questions that obtained these data were consecutive questions that sought to capture all relevant mediator conduct used to facilitate the




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 resolution of the dispute. The first question was “If the dispute was resolved, describe the conduct *93 you believe facilitated resolution.” This question was structured so that the mediators first described the conduct of the other parties to the proceeding, finishing with a description of their own conduct.

The next survey question was “If the dispute was resolved, identify any major acts or conduct that you used as mediator to facilitate resolution.” This second question was a “belt and suspenders” approach to ensure as rich a database as possible.

This worked well as we sometimes were apprised of other mediator conduct not captured by the first question. The answers were team coded as described previously. The coding process ensured that we could identify all mediator conduct that the mediators believed facilitated the resolution of the dispute. While our literature review above indicates that there is no existing consensus as to exactly what constitutes evaluative versus facilitative behavior, we used the existing literature discussed above as a guide. Thus, we use Bush and Folger’s description of facilitative mediation behavior as that which involves agenda structuring without any mediator coercion or pressure. This includes conduct that encourages or assists the parties to resolve the dispute without reliance on the mediator, but rather by their own interaction. We define evaluative behavior as conduct that opines, challenges, suggests, predicts, or otherwise attempts to influence a party’s perception or position. Here, we borrow from Riskin’s analysis. This evaluative conduct may be based on mediation externalities such as the law, the likelihood of prevailing in litigation, and other outcome-related variables.

We classify any conduct engaged in for the sole or mixed purpose of influencing a party’s position at mediation as evaluative. This includes reality checking.

97 We believe that our classifications are consistent with the literature discussed above. We recognize that the classifications may not be in agreement with some theories that include evaluation in their concept of facilitative mediation. We leave it to others to debate whether certain evaluative tactics are permissible in a facilitative mediation and thus, the impact of our findings on the existing facilitative-evaluative debate. Appendix B sets forth our classifications. We developed a “hybrid” classification for tactics that may be either facilitative or evaluative in their applied context. They are “too close to call” based on the written description as they must be observed in the context of their usage. Mediators identified other *94 conduct that resulted in behavior codes that did not fit in the facilitative, evaluative or hybrid classifications.

From our analysis using this operational definition, we report nine important findings. These results question many current mediation beliefs and practices.

Our first research question asks if it is realistic to claim that mediation can be entirely facilitative. Some commentators have argued that mediation must incorporate evaluative mediator conduct, and thus advocates of pure facilitative mediation are not realistic.

98

Table 1 identifies the cases where the mediator engaged in any evaluative, facilitative, or hybrid behavior. The number of cases (425) in the following tabulation corresponds to cases where the mediator mentioned at least one behavior that can be categorized as evaluative, facilitative, or hybrid behavior. Thus, cases where the mediator did not respond to the question or identified other factors that facilitated resolution (e.g., the mediator’s patience and persistence) were excluded from this tabulation.

Table 1. Incidence of Mediators Using Evaluative, Facilitative, or Hybrid Techniques

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE

The 425 cases were further classified into six mutually exclusive categories, with emphasis on identifying cases where the mediators used evaluative or facilitative techniques only. Table 2 identifies these categories and the mediations where particular types of mediator behavior were found.

*95 Table 2. Summary of Mediator Behavior


The results from Tables 1 and 2 indicate that it is possible to mediate cases without using any evaluative techniques.

99 This is our first important finding. It establishes that mediators do not necessarily have to use evaluative techniques. Thus, those scholars referenced above, such as Birke and Stempel, who argue that every mediation involves some evaluative conduct do not appear to be correct. While mediation can be eclectic, it can also be conducted in a pure facilitative style.





Our second important finding is that in a mediation program labeled as facilitative, a substantial number of mediators engage in evaluative behavior. While most of the behavior was reality checking, thus consistent with the view of many that some evaluative behavior such as reality checking is appropriate in mediation, we also identified other behavior that all scholars would classify as evaluation.

As reported in Table 1, evaluative techniques are used in almost half (48.5%) of the mediated cases. More importantly (as reported in Table 2), mediators in 24% of the cases studied report that they use purely evaluative tactics to facilitate the resolution of a case. This indicates that it may be futile to direct mediators to engage in one particular style. It calls into question any program that claims mediators are engaging in only one type of conduct. Moreover, it is far from clear that these programs even articulate what conduct is permissible in a facilitative setting.

*96 2. Party Satisfaction Ratings by Mediator Tactics

We next sought to determine how the actual tactics used by the mediator affected the satisfaction ratings given to the mediation by the charging party and respondent. For all of our following analyses, we identified mediations where there was a clear use of either facilitative or evaluative tactics. Thus, we excluded mediations where any hybrid tactics were used. We did this to avoid the ambiguity associated with the hybrid classification.

100 a) Charging Parties

Table 3 sets forth the charging party ratings of the mediator broken down into procedural due process and distributive elements. We classify the mediator conduct by those cases that involved pure facilitative conduct, pure evaluative conduct, and both types of conduct.

Table 3. Mediator Conduct and the Charging Parties’ Satisfaction Rating*


Our third important finding is that charging parties in cases where purely facilitative techniques were employed generally rate the procedural and distributive elements higher compared to charging parties in cases where purely evaluative techniques were employed.

101 Among the procedural elements, the top four elements with the largest percentage difference between the purely evaluative and purely facilitative mediations are: perceived fairness of the procedures used by the mediator (9.3%), options developed with the help of the mediator (8.1%), adequate explanation from an EEOC representative prior to the mediation 102 (7.7%), and full opportunity to present one’s views during the process (7.2%).

The three distributive elements also received substantially higher ratings among charging parties in facilitative mediations.

The percentage difference was highest concerning satisfaction with the fairness of the session (9.3%), satisfaction with the results of the mediation (8.9%), and the development of realistic solutions to resolving the charge (7.6%). It is noteworthy to mention that the largest difference occurs in statements involving fairness. This suggests that *97 where facilitative techniques are used, the parties are more likely to perceive the mediator as being neutral or fair. This is consistent with the well-established argument that a disadvantage to evaluative mediation is that the parties will not perceive the mediator as being and remaining neutral.

The overall results suggest that, while all forms of mediation had high participant satisfaction ratings, the purely facilitative mediation is most satisfactory to the charging party. This third finding is *98 the opposite of the conclusion reached by the

McGillis Department of Justice study.

103 That survey of the existing literature on community mediation programs indicated that the type of mediation style does not influence the disputants’ perceptions of the mediation process.

104 By contrast, our results support Stempel’s observation that facilitative mediation may produce better customer satisfaction than evaluative mediation.

105 b) Respondents

Table 4 sets forth the respondents’ ratings by mediator tactics. Although the overall pattern is similar, the differences are less pronounced than those for the charging parties.

Table 4. Mediator Conduct and the Respondents’ Satisfaction Rating*






3. Other Satisfaction Measures: The Parties Willingness to Use the EEOC’s Mediation Program in the Future and

Whether the Parties Obtained What They Wanted

We used two other measures of participant satisfaction. The first asked the party if it would be willing to participate in the

EEOC mediation program in the future. Here, the results indicate high agreement for both styles; there is no substantial difference in the pattern of response between parties in purely evaluative and purely facilitative mediations.

Table 5. Mediator Conduct and the Participants’ Willingness to Participate in the EEOC’s Mediation Program*


The second measure inquired whether the party obtained what it wanted from the mediation.

106 The results are reported below in Table 4. Although the differences are not substantial, those who participated in the purely facilitative mediation are more likely to report that they obtained what they wanted. Therefore, it is possible that the facilitative process may lead individuals to conclude that they obtained what they wanted more often than the evaluative process. Our next analysis shows that while the parties feel that they obtained what they wanted with facilitative mediation they may not have obtained as much money from this particular mediation style.

Table 6. Mediator Conduct and Whether or Not the Participants Obtained What They Wanted


*99 B. The Average Dollar Benefit and the Influence of Mediator Style and Representation

We sought to identify the relationship of the average dollar benefit to the following factors: (1) the tactics employed by the mediator *100 and (2) whether or not the party was represented by counsel.

107 We believe that the money obtained in mediation is an important measure. As noted by Lande:

*101 Money is often a symbol of other things, such as finding a fair and honorable result, validation of injury, vindication of justice, “winning,” demonstration of savvy, attribution of fault, perception of (not) being “taken,” scoring points against opposing counsel or other antagonists and what the disputants will say about the case to their superiors, colleagues, friends, and relatives.

108

1. Dollar Benefit and Mediator Style

In the following analysis where we discuss the relationship of the average dollar benefit to mediator style, note that we did not control for the type of case before the mediator. It is possible that the more lucrative cases somehow were mediated by one style as opposed to another. Thus, this measurement is probative, but far from dispositive, on the issue of whether one style in employment mediation may yield a higher average dollar benefit. Table 7 presents the average dollar benefit comparison.

Table 7. Mediator Conduct and the Average Dollar Benefit


Our results indicate that, under certain circumstances, the purely evaluative mediation resulted in the highest average dollar benefit for the charging party. Where evaluative mediation was used, the charging party was likely to receive a settlement amount of almost $5,000 ($ 14 ,889 vs. $10,106) more than if facilitative mediation was used.

109 This is our fourth important finding.

110

This data presents an interesting picture. While Tables 3 and 6 indicate that charging parties may “feel” better about a facilitative mediation and report that they obtained what they wanted, evaluative conduct appears to garner more money in settlement. This picture is incomplete. As we will see below, while evaluative mediation *102 may result in a higher




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 settlement payout, the presence of counsel plays a major role.

2. Dollar Benefit and Party Representation

We also sought to determine the relationship between dollar benefit and representation. Here, while most of the charging party representation was by counsel, our question covered any representation by another person.

111 Table 8 sets forth these results.

Table 8. Dollar Benefit and Party Representation


Our fifth important finding demonstrates the importance of representation on the side of the charging party. The table above clearly shows that for all mediation styles, a charging party who has representation will obtain significantly more money.

Comparing across mediation styles, the results also show that when a purely evaluative mediation is combined with representation, the return to the charging party is far more than if the evaluative mediation was conducted without representation ($31,275.56 vs. $5,987.95). This is our sixth important finding - that there appears to be a synergistic effect when one combines evaluative mediation with representation.

Our seventh important finding points to the relative importance of representation compared to the mediation style. If the evaluative mediation was conducted without representation, the charging party *103 was worse off than if the mediation was facilitative and without representation ($ 5 , 987.95 vs. $8,778.52). Thus, the worst possible position for a charging party is evaluative mediation without representation. While our overall results show that the charging party obtains more money in evaluative mediation, this is due to the high payouts when representation is present. This suggests that one of the criticisms of evaluative mediation, that a party may be “strong-armed” by the mediator, is possible.

112 This also suggests that the observed differences in the dollar settlements are driven predominantly by the presence of representation rather than the mediation style.

113

Unlike the relatively large dollar difference based on representation in an evaluative mediation, a charging party engaged in facilitative mediation with representation does not obtain much more money than if the charging party represented his or her self ($13,027.54 vs. $8,778.52). It appears that purely facilitative mediation, while establishing a more protective floor for recovery without representation, does not have the same upside potential as does evaluative mediation with representation.

114

Thus, as opposed to mediation with an evaluative element, mediation with pure facilitative techniques has a comparatively narrow range of settlement. This is our eighth important finding.

115

While some may argue that the appearance of a representative at mediation is a sign that the case had more value from its onset, this is undermined by the spread between the amount obtained when one uses representation in a facilitative proceeding versus when one uses representation in an evaluative mediation.

Table 8 also reports the respondents’ results. These results exhibit the same pattern of discrepancies in the dollar settlements - the use of representation and facilitative mediation results in higher dollar settlements. However, the differences are not as pronounced compared to the results for the charging parties. This suggests that the presence of a representative on each side of the dispute raises the *104 amount of the settlement. This may be because the presence of an attorney signals that the case was of greater value from the outset. Under this theory, either or both parties value the case, recognize larger economic exposure and elect to employ counsel. It may also signal that attorneys, who are aware of the “going rate” for settlement of certain cases, may import this into the mediation, resulting in a higher settlement than would otherwise be agreed to by two parties unaware of the legal externalities.

Given the important findings in this section, we decided to analyze our data in greater detail by the use of regression analysis.

3. Regression Analysis: Average Dollar Benefit, Representation, Type of Case, and Mediator Behavior

We sought to ascertain the impact of selected determinants on the dollar benefit using regression analysis. Our dependent variable is the average dollar benefit and our independent variables are dummy variables corresponding to the type of case, whether the charging party and the respondent had representation, and whether the mediator employed purely facilitative or purely evaluative tactics. Table 9 reports these results below.





Table 9. Regression Analysis Results - Average Dollar Benefit


The results of the regression indicate that the presence of a representative on the side of the charging party, the style of the mediator (evaluative), and the type of case (age) are statistically significant variables that contribute to higher dollar settlements. More specifically, the presence of a representative on the side of the charging party raises the average dollar settlement by $12,753 and the use of evaluative tactics results in dollar benefits that are higher by $4,885 *105 on the average. These numbers reinforce the previous findings mentioned above: the presence of a representative on the side of the charging party has a significantly higher dollar impact compared to the use of evaluative tactics.

This is our ninth important finding. While numerous contextual factors are important in employment mediation we identify three key factors. Of these three, the most important factor is whether or not the charging party is represented in the mediation.

116 This raises an important public policy issue since many mediators and mediation advocates seek to minimize the role of the attorney. Some mediation programs frown on extensive lawyer involvement and actually have procedures to limit such involvement.

117 Our results call such conduct into serious question. The role of representation appears to be the most important factor in assisting a charging party to maximize the dollar amount of the settlement.

Moreover, certain mediation styles, primarily facilitative and transformative, do not contemplate much, if any, role for counsel. Given that our data indicate that a charging party may obtain less in employment mediation without legal representation, one must consider whether this result is transferable to other mediation forums that downplay the role of representation.

IX. Conclusions and Implications

Our conclusions answer many of the questions about what is going on in mediation - at least in employment mediation. These findings are important for the administration of justice, particularly as they concern the rights of the charging parties in employment mediation. Kovach and Love tell us that party self-determination and informed consent require that parties have knowledgeable choices *106 about the selection of the mediation process to resolve their dispute.

118 This self-determination is “among the pillars of the mediation process.” 119

These findings are also important for dispute resolution design professionals. Our data explains the advantages and disadvantages of facilitative and evaluative conduct in mediation; the essential role of counsel (if one believes that the size of the settlement is important); disputant satisfaction with facilitative as opposed to evaluative mediator conduct; and other findings that assist the dispute systems design professional.

These findings should also assist in mediation training and in the consideration of legislation in this field. In training, both mediators and advocates will be better able to understand how their use of particular styles may produce certain results. They also need to understand how mediation styles may influence an unrepresented party.

Legislatures who have passed, or are considering passing, regulations on the extent of mediator conduct, including approval or disapproval of evaluative mediation, can use these results to better understand how evaluative mediation affects parties, particularly unrepresented parties.

Finally, shrewd counsel can employ these conclusions for tactical advantage. If counsel has a strong case, using a mediator with an evaluative style may result in a higher settlement amount. If the case is weak, a facilitative mediator may be preferable.

We have found over the years that mediators already instinctively grasp what we take years to study. With that caveat in mind, this data may also assist mediators in better understanding themselves and the mediation process.

We offer four key conclusions. The first two conclusions have important implications for the practice of mediation, the training of mediators, the regulation of mediation, the selection of mediators, and the practice of law before mediators. The remaining two conclusions are important contributions to the academic debate surrounding the issues of mediator style and dispute resolution program design.





*107 A. The Critical Role of Representation in Mediation

We set out to give some insight to the facilitative-evaluative debate. While we have done so, our key finding relates to the role of counsel in mediation. Mediation programs often downplay the role of counsel.

120 Some programs ask that counsel remain in the background. Many mediators treat counsel as an obstacle to the dispute resolution process. Our results indicate that if the amount of money obtained in settlement is important, the charging party in employment mediation is at a decided disadvantage without counsel. This disadvantage is even more pronounced in an evaluative mediation. The practical implications of these findings include: (1) Participants, particularly charging parties in employment mediation, should be advised of the benefits of counsel and forewarned that they may obtain a lower monetary settlement without representation;

(2) Counsel should think twice about allowing a client to participate in mediation without his presence; and (3) Mediation models that limit the role of representation are inherently suspect.

B. “Feel Good” versus “More Money”

This data provides great insight into how employment mediation works. Our data suggest that both sides of the facilitative-evaluative debate have sound arguments. Those in the facilitative camp are correct that their mediation style clearly produces higher disputant satisfaction ratings on both procedural due process and distributive measures. Although charging parties in an employment mediation often obtain significantly less money in settlement using facilitative mediation rather than evaluative mediation, charging parties are more likely to report that they obtained what they wanted. It is fair to say that facilitative conduct is more pleasing to the parties. One may argue that this is because there are intrinsic and non-monetary gains that are met in facilitative mediation but not evaluative mediation. However, others may argue that where a charging party is clearly obtaining much less money in facilitative mediation, such high disputant satisfaction ratings are a pyrrhic victory.

As important, while evaluative mediation offers the highest potential payout, this occurs only where there is legal representation. Absent legal representation, evaluative mediation appears to result in lower settlement amounts. Research is necessary to determine if evaluative conduct and/or comments are used to intimidate unrepresented charging parties into settling.

*108 Our research on these issues is far from conclusive. Nevertheless, there are serious policy implications for the facilitative process, including transformative mediation, which is the facilitative model that most closely resembles our operational definitions of facilitative. If it is clear that these processes result in lower settlement amounts, even where counsel is involved, it appears that the mediation participants, particularly the person seeking money damages or other relief, should be informed of this in advance; they could then choose the process that they wanted. Here it is “feel good” versus “more money.” 121

Attorneys also need to be aware of these results. Based on the strength of their case, they may choose to select a facilitative or an evaluative mediator. More research is necessary to test these results in other mediation forums outside of employment law.

We also need to study the needs of the charging parties and whether they are willing to knowingly sacrifice a more pleasing process for tangible monetary benefits. Also, research needs to be done to determine if the reason for the difference in settlement benefit is due to the concept of “framing” (i.e. the fact that the facilitative mediation is not focused on money but on other outcomes) thus maximizing these non-monetary outcomes, whereas the evaluative mediation is focused on the value of the outcome and thus resulting in higher settlements.

C. Mediation can be Purely Facilitative

Stempel, Birke, and others have argued that mediation is eclectic. Our results indicate that some mediators stay within the facilitative framework.

122 Thus, a pure facilitative mediation is possible. This finding has important implications for dispute resolution design professionals. It contributes significant evidence to the issue of whether or not mediation can avoid evaluation. The answer is yes.

At the same time, some mediators indicate that purely evaluative techniques or a combination of both evaluative and facilitative techniques is critical for the resolution of the case. It may be that mediation behavior is context driven. If true, this suggests that the other half of the Riskin Grid, related to the issues/context of the dispute, is important for understanding mediator behavior.





*109 D. Many Facilitative Mediation Programs are Not Facilitative

Another important dispute resolution design implication is that just because a program is called facilitative does not mean that the mediators are engaging in facilitative conduct. This is clear from our data. We see many cases (24%) where only evaluative tactics were reported as the tactics used by the mediator to resolve the dispute. We see many cases where both facilitative and evaluative techniques are used.

X. Summary

The obvious financial disadvantage to mediation without representation should be broadcast across the mediation landscape.

This should include an explanation of the clear advantage of evaluative mediation over facilitative mediation for a charging party or plaintiff who is represented as well as the obvious downside for such party participating in evaluative mediation without legal counsel. However, if one does not want to use an attorney, facilitative mediation is clearly preferable. For an employer in employment mediation, the best scenario is an evaluative mediation without representation on either side.

Further, evaluative mediators should consider why their process is either the best (with representation) or the worst model for charging parties. These results suggest that the evaluative mediator may take advantage of the charging party (usually the weaker party) and that party’s lack of representation to “hammer out” an agreement.

These and the other conclusions reported above seek to provide a rich source for debate among scholars, trainers, regulators, mediators, the bar, and other parties interested in what is going on in mediation today.

*110 Appendix A

MEDIATOR - MEDIATION RESULTS SURVEY We are independent researchers (college professors) working under a grant competitively bid by the EEOC. Your assistance in completing this survey will allow us to fully analyze the EEOC’s mediation process. In addition, this information will allow the EEOC to determine the type of training programs and other support that can be provided to mediators. Please return the survey to us in the enclosed envelope.

1. Is this the first time that you mediated this dispute with the parties?

YES NO

If you answered “YES”, please answer a - d below. If you answered “NO” skip to question #2. a. How many separate days have the parties met before? b. How long were the mediations on each of these earlier days? c. Where these prior mediations held on consecutive days?

YES NO d. If “NO” was there a reason that the mediation did not continue on consecutive days?

2. How long did today’s mediation last?

3. Was there a resolution of this dispute?

YES NO

IF YOU ANSWERED “YES” SKIP TO QUESTION # 8

IF YOU ANSWERED “NO” ANSWER BELOW (#4-#7):





*111 4. If the dispute was not resolved, list and explain in detail the 3 main reasons why you believe that no resolution was reached. (explain in detail)

5. If the dispute was not resolved, please describe any conduct that you think interfered with the reaching of agreement engaged in by:

A. The Charging Party:

B. The Charging Party’s attorney or other representative:

C. The Respondent:

D. The Respondent’s attorney or other representative:

6. If the dispute was not resolved please list the five most important barriers to resolution. List in order of importance with #1 being the greatest barrier to resolution.

1.

2.

3.

4.

5.

7. Now that the case is completed, is there anything that YOU would have done differently to enhance the chances for agreement? Please describe in detail.

8. If the dispute was resolved, describe the conduct you believe facilitated resolution by:

A. The Charging Party:

B. The Charging Party’s attorney or other representative:

C. The Respondent:

D. The Respondent’s attorney or other representative:

*112 E. By You as the mediator:

9. In addition to your answer at 8E above, were there any particular mediation tactics that you used as the mediator to facilitate resolution?

10. If attorneys or other representatives were involved in this mediation please rate the dispute resolution skills of the attorneys on a scale of 1 to 5 with “1” being minimal skills and “5” being excellent skills:

CHARGING PARTY’S ATTORNEY:


RESPONDENT’S ATTORNEY:


CHARGING PARTY’S NONLEGAL REPRESENTATIVE:






RESPONDENT’S NONLEGAL REPRESENTATIVE:


11. List and explain anything that you think the EEOC could do to improve the mediation process?

THANK YOU!

(A REMINDER - HAVE YOU COMPLETED THE COMPREHENSIVE MEDIATOR BACKGROUND/STYLE

SURVEY? PLEASE MAKE SURE THAT WE HAVE YOUR SURVEY ON FILE.)

*113 Appendix B

Mediator Conduct That Facilitated Case Resolution


Footnotes d1 E. Patrick McDermott is an Assistant Professor of Legal Studies/Management at the Franklin P. Perdue School of Business and the Director of Research and Evaluation at the Center for Conflict Resolution at Salisbury University. He holds a B.S. and a M.S. from the New York State School of Industrial and Labor Relations at Cornell University, a J.D. from Rutgers-Newark School of

Law, an LL.M. from New York University School of Law and a Ph.D. from the School of Business and Public Management at

The George Washington University. dd1 Ruth Obar is a Senior Research Fellow at the Center for Conflict Resolution at Salisbury University. She holds a B.S. in Statistics from the University of the Philippines and a M.A. and Ph.D. in Economics from the University of Alabama.

The authors thank our colleagues Dr. Anita Jose of Hood College for her comments on an earlier draft of this paper and Dr. Brian

Polkinghorn of the Center for Conflict Resolution at Salisbury University for his assistance in the coding of data.

1 See Leonard R. Riskin, Mediator Orientations, Strategies, and Techniques, 12 Alternatives to High Cost Litig. 111 (1994) ;

Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 Harv. Negot. L. Rev. 7 (1996)

[hereinafter A Grid for the Perplexed].

2 See A Grid for the Perplexed, supra note 1, at 8.

3 Id. at 17.

4 Id.

5 See id. at 9.

6 See Kimberlee K. Kovach & Lela P. Love, Evaluative Mediation is an Oxymoron, 14 Alternatives To High Cost Litig. 31 (1996) .

7 See Kimberlee K. Kovach & Lela P. Love, Mapping Mediation: The Risks of Riskin’s Grid, 3 Harv. Negot. L. Rev. 71, 109 n.4

(1998) .





8 See L. Randolph Lowry, Training Mediators For The 21st Century: To Evaluate or Not: That is Not the Question!, 38 Fam. &

Conciliation Cts. Rev. 48, 48 (2000) .

9 Kovach and Love, supra notes 6 and 7.

10 See Jeffrey W. Stempel, Identifying Real Dichotomies Underlying the False Dichotomy: Twenty-First Century Mediation in an

Eclectic Regime, 2000 J. Disp. Resol. 371, 375 (2000) .

11 Ellen A. Waldman, The Evaluative-Facilitative Debate in Mediation: Applying The Lens of Therapeutic Jurisprudence, 82 Marq.

L. Rev. 155, 169 (1998) .

12 Stempel, supra note 10.

13 Id.

14 Id. at 389.

15 Id.

16 John Lande, Toward More Sophisticated Mediation Theory, 2000 J. Disp. Resol. 321, 331 (2000) .

17 Id. at 330.

18 See Dwight Golann, Variations in Mediation: How-and Why-Legal Mediators Change Styles in the Course of a Case, 2000 J.

Disp. Resol. 41, 61 (2000) .

19 Id.

20 Should Mediators Evaluate? A Debate Between Lela P. Love and James B. Boskey, 1 Cardozo Online J. of Conflict Resol. 1, P

96 (Dec. 19, 1997) at http://www.cardozojcr.com/vol1no1/article01.html (citing Daniel McGillis, U.S. Dep’t of Justice,

Community Mediation Programs: Developments and Challenges, National Institute of Justice (July 1997), at www.ncjrs.org/txtfiles/165698.txt). [hereinafter Should Mediators Evaluate?].

21 McGillis, supra note 20, at P 84.

22 Note that the EEOC mediations involve a charging party seeking money or other things of value from the respondent. The respondent is not counterclaiming in these mediations. This is different from mediations in other forums where each party may be asserting damage claims.

23 See Lowry, supra note 8, at 48.

24 In this section we offer the views of some of the leading proponents of facilitative mediation. We regret that we could not




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 introduce all scholarship in this area. Riskin notes that the principal mission of the facilitative mediator is “to clarify and to enhance communication between the parties in order to help them decide what to do.” See A Grid for the Perplexed, supra note 1, at 24.

25 Robert A. Baruch Bush and Joseph Folger, The Promise of Mediation: Responding To Conflict Through Empowerment and

Recognition (1994), at 81-95; see also Robert A. Baruch Bush, Efficiency and Protection, or Empowerment and Recognition? The

Mediator’s Role and Ethical Standards in Mediation,

41 Fla. L. Rev. 253, 265-66 (1989) (advocating an empowerment and recognition conception of the mediator’s role).

26 See Bush & Folger, The Promise of Mediation, supra note 25, at 33-40.

27 Dorothy J. Della Noce, Robert A. Baruch Bush & Joseph Folger, Clarifying the Theoretical Underpinnings of Mediation:

Implications for Practice and Policy, 3 Pepp. Disp. Resol. L.J. 39, 50 (2002) .

28 Id. at 50-51.

29 See Bush & Folger, The Promise of Mediation, supra note 25, at 84-85.

30 See id. at 101.

31 See id. at 275-278 (arguing in favor of transformative mediation as opposed to directive/evaluative mediator conduct).

32 Robert A. Baruch Bush, “

What Do We Need Mediation For?”: Mediation’s “Value Added” for Negotiators, 12 Ohio St. J. on

Disp. Resol. 1, 35 (1996) ; see also Kovach and Love, supra notes 6 & 7.

33 Kimberlee K. Kovach & Lela P. Love, Evaluative Mediation is an Oxymoron, 14 Alternatives to High Cost Litig. 31, 31 (1996) .

34 Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 Fla. State U. L. Rev. 937, 938-39 (1997).

35 Id. at 80 n.37; Kovach and Love comment in this note that after reviewing a draft of their paper, John Lande advised them that he saw “challenging party proposals” and “making suggestions” as “heavily evaluative.” We believe that this conduct allowed by

Kovach and Love in a facilitative mediation at least implicitly approves of mediator pressure and/or coercion.

36 Id. at 79.

37 We classify specific mediator conduct as evaluative or facilitative infra. p. 99 and Appendix B.

38 Professor Jeffrey Stempel and others would argue that this technique is at least partly evaluative and may be purely evaluative depending on the context of the utterance-testing phrase. See Kovach & Love, supra note 7, at 79-80; see also Stempel, supra note

10, at 379 n.23.

39 Kovach & Love, supra note 7, at 79.





40 Id.

41 Id. at 75.

42 Id.

43 Kovach & Love, supra note 7, at 76.

44

“Should Mediators Evaluate?”, supra note 20, at P 57.

45 Id. at P 81.

46 Id. at P 25. John Lande describes this area between appropriate reality testing in facilitative mediation and evaluation as “huge and dependent on many contextual factors” and notes that reality testing can range from “benign” to “quite coercive.” Lande, supra note 16, at 323 n.10.

47 Joseph B. Stulberg,

Facilitative Versus Evaluative Mediator Orientations: Piercing the “Grid” Lock, 24 Fla. St. U. L. Rev. 985,

988 (1997) .

48 Id. at 1001.

49 Id. at 986.

50 Id. at 990.

51 Stulberg, supra note 47, at 1002.

52 Id. at 1002-03.

53 Id.

54 Id. at 1003.

55 Stulberg, supra note 47, at 1002.

56 Id. at 1004.

57 Id. at 1005.

58 Id. at 988; see also Kovach & Love, supra note 33, at 31.






60 Id. at 26.

61 Id. at 27-28.

62 Id. at 30.


64 Id.

65 Id. at 24.

66 Lowry, supra note 8, at 48.

67 See John Lande, How Will Lawyering and Mediation Practices Transform Each Other?, 24 Fla. U. L. Rev. 839, 849-56 (1997).

68 See, e.g., John Bickerman, Evaluative Mediator Responds, 14 Alternatives to High Cost Litig. 70, 70 (1996) .

69 Lande, supra note 67, at 873-77.

70 Waldman, supra note 11, at 167 n.72.

71 Id. at 157.

72 Stempel, supra note 10, at 371.

73 See id. at 372.

74 See id.

75 See id. at 371-75.

76 Stempel, supra note 10, at 374.

77 Id. at 376.





78 Id. at 383.

79 Id. at 377.

80 See Stempel, supra note 10, at 377-78.

81 See Richard Birke, Evaluation and Facilitation: Moving Past Either/Or, 2000 J. Disp. Resol. 309, 310 (2000) ; see also Lande, supra note 16, at 321.

82 Birke, supra note 81, at 315.

83 Murray S. Levin, The Propriety of Evaluative Mediation: Concerns About the Nature and Quality of an Evaluative Opinion, 16

Ohio St. J. on Disp. Resol. 267, 269 (2001) .

84 Id.

85 Donald T. Weckstein, In Praise Of Party Empowerment--And Of Mediator Activism, 33 Willamette L. Rev. 501, 502 (1997) .

86 Id at 505.

87 E. Patrick McDermott et al., An Evaluation of the Equal Employment Opportunity Commission Mediation Program, EEOC Order

No. 9/0900/7632/2 (Sept. 20, 2000), at http://www.eeoc.gov/mediate/report/index.html.

88 We use the term “dispute” in this report instead of “charge” because while the EEOC mediation program involves the mediation of an enumerated charge citing violations of the law, we found that the actual mediation often addressed disputes that encompassed more than the face of the charge.

89 E. Patrick McDermott et al., The EEOC Mediation Program: Mediators’ Perspective on the Parties, Processes, and Outcomes,

EEOC Order No. 9/0900/7632/G (Aug. 1, 2001), at http://www.eeoc.gov/mediate/mcdfinal.html.

90 McDermott, supra note 87.

91 A Likert scale provides a continuum along a five-point range from which an individual must select one response.

92

See N.M. Ashkanasy, Rotter’s Internal-External Scale: Confirmatory Factor Analysis and Correlation with Social Desirability for

Alternative Scale Formats, 48 J. Personality & Soc. Psychol. 1328 (1985).

93 See Appendix A.

94 Dean G. Pruitt et al., Long-Term Success in Mediation, 17 Law & Hum. Behav. 313, 314 (1993) .





95 Id.

96 We use the terms behavior, tactics, and style interchangeably.

97 While facilitative advocates may permit the use of this tactic in mediation, they also see it as evaluative conduct. See Kovach &

Love, supra note 7.

98 See supra note 87 (arguing that mediation of a legal dispute is necessarily both facilitative and evaluative).

99 We are mindful of the claim that an alternative way to interpret the data is that this is an inventory of successful tactics and that it may well be that an extensive battery of other techniques were used that were not successful and thus not reported by mediators.

This would mean that what we report are not mediator styles, but rather successful styles. Given the combined scope of our two tactic questions, we believe this data represents all relevant tactics used at mediation.

100 One could argue that where a mediator has used all facilitative or all evaluative conduct it is safe to conclude that the hybrid tactics were probably consistent with that style. However, we elected not to take this tack and thus excluded the hybrid category from the analysis.

101 Statistical tests on the mean ratings suggest no significant differences; however, this may be partly due to the fact that a very high percentage of the participants rated the program favorably in almost all elements; thus, there is not enough variability in the ratings to distinguish between the mediator styles.

102

We are not sure if this measure is related to the mediators’ style.

103 Supra note 20, at P 84.

104 Id.

105 Supra note 10, at 375.

106 We screened this question by first asking if the party knew what he or she wanted going into mediation. Parties that did not were excluded.

107

For an excellent discussion of the lawyer’s role in mediation, see Jean R. Sternlight, Lawyers’ Representation of Clients in

Mediation: Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting, 14 Ohio St. J. on Disp. Resol.

269 (1999) .

108 Lande, supra note 16, at 328.

109 Note that we did not measure other values of a nonmonetary nature such as reinstatement, a letter of reference, agreement not to contest an unemployment claim, etc.

110 This finding aids those who argue that facilitative or transformative mediation is not appropriate in a court-based mediation




“WHAT’S GOING ON” IN MEDIATION: AN EMPIRICAL..., 9 Harv. Negot. L. Rev. 75 program. See Deborah R. Hensler,

Suppose It’s Not True: Challenging Mediation Ideology, 2002 J. Disp. Resol. 81, 97-98

(2002) .

111 For example, in some cases a union agent, friend, spouse, etc., may have represented the charging party. Similarly, a human resource professional or consultant may have represented the company.

112 See Kovach & Love, supra note 6, at 31.

113 This assertion is investigated further in the next section where we present our regression analysis.

114 One possible defense of facilitative mediation is that the problem-solving process resulted in other nonmonetary benefits that are not usually discovered in an evaluative process, so that therefore the monetary picture described above does not accurately portray the true financial benefits of facilitative mediation. However, there is no evidence to support this claim.

115 Findings six through nine support Hensler’s view of the central role that an attorney must play in the dispute resolution process.

Hensler, supra note 110, at 97.

116 One may assert that age discrimination cases are the driving force for the settlement amounts and that these cases disproportionately involve charging party representation. Thus, they would argue, the role of representation is subordinate to the type of case. We see no probative evidence to support this interpretation.

117 This author has evaluated the Equal Employment Opportunity Commission and California Department of Fair Employment and

Housing mediation programs. While both programs permit attorneys to participate, the programs contemplate that it is the parties, and not the attorneys, who should interact with each other and the mediator.

118 See Lela P. Love & Kimberlee K. Kovach, ADR: An Eclectic Array of Processes, Rather Than One Eclectic Process, 2000 J.

Disp. Resol. 295, 300 (2000) .

119 Id.

120 This is particularly true for transformative and facilitative mediation models.

121 These results highlight the procedure-substance and the disputant satisfaction-just outcome split in the mediation profession described by Stempel and discussed supra p. 97.

122 This finding contradicts the claim that pure facilitative mediation is unworkable in practice. See supra note 87.

123 We note that in the pure facilitative model, caucuses are considered to be evaluative. Similarly, certain process-control conduct, controlling the introduction of evidence, and any premediation conduct are also considered by purists to be more evaluative than facilitative. However, we do not believe that the conduct fits our definition of evaluative conduct and thus place it in the hybrid category.

124 Once again, while one can stretch these codes to argue that they belong in the facilitative, evaluative or hybrid categories we considered this to be other behavior that we did not elect to shoehorn into one of the categories.





End of Document © 2011 Thomson Reuters. No claim to original U.S. Government Works.


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