FURTHER INVESTIGATION INTO THE SECRETS
OF SUCCESSFUL AND UNSUCCESSFUL MEDIATORS
This article reports the results of the second and third studies in a continuing research project designed to determine how mediators succeed in assisting disputing parties to achieve settlements--and why they sometimes fail.
In Study One, we asked 30 experienced mediators, most of whom deal primarily with commercial, labor, and employment disputes, and nearly all of whom had mediated more than 100 disputes, how they accounted for their success. See Stephen B. Goldberg, "Mediators Reveal Their Essential Techniques for Successful Settlements," 24 Alternatives 81 (May 2006).
"What skills and techniques," they were asked, "enable you to get settlements? ... What [do] you view as your essential strengths and techniques?" Seventy-five percent of the mediators responded that their ability to achieve rapport with disputing parties--a relationship of understanding, empathy, and trust--was central to their success in bringing about settlement.
A majority of the mediators attributed their ability to achieve rapport to empathic listening, through which they conveyed the message that they truly cared about the parties' feelings, needs, and concerns. Other mediators attributed their success in achieving rapport to their honesty, ethics, and trustworthiness.
The surveyed mediators also reported that once having achieved rapport, their most useful techniques for achieving settlements were to generate novel or creative solutions to the dispute, to display patience and persistence in encouraging settlement, and to use humor to reduce tension.
Study One was limited in that it was based entirely upon the personal observations and reflections of the mediators, with no participation from those who had used their services.
Accordingly, in Study Two, we surveyed people who had participated in mediation as representatives of disputing parties--typically attorneys--to determine their responses to the question of what led to mediation success.
Then, in Study Three, we asked the same group of disputants' representatives about what constituted unsatisfactory mediator behavior, reasoning that this, too, might illuminate both the key ingredients of mediator success and what pitfalls should be avoided.
STUDY TWO--REASONS FOR MEDIATOR SUCCESS
In order to collect Study Two data, we asked each of the mediators who had participated in Study One to provide us with the names of the disputants' representatives in six mediations they had conducted--a total of 12 advocates per mediator. We received the names of 329 disputants and sent each a letter identifying the mediator who had provided us with his or her name. We asked each recipient to respond to two questions, with the assurance that we would not share those responses with the mediator in question:
Thinking back to your most recent mediation with [the named mediator], and any other mediations that you may have had with him/her, what personal qualities, skills, or techniques did [the named mediator] demonstrate that helped move the parties toward settlement?
How would you account for [the named mediator's] success as a mediator?
Of the 329 people surveyed, 216 replied, a 66% response rate. Seventy percent (152 out of 216) of the respondents were lawyers, 22% (48 of 216) were union or management representatives in labor dispute mediations, and 8% were either representatives of government agencies or public interest organizations in environmental and public policy disputes, or people who represented themselves in the mediation.
The most frequently cited behavior correlated to mediator success involved the mediator's ability to gain the parties' confidence, albeit by different means. Tops on the list--referred to by an average of 60% of the mediation advocates commenting on the average successful mediator-was that the mediator was friendly, empathic, likable, etc. Examples of the respondents' comments include:
• "He is a genuinely nice guy. People like to be around other people whom they like-especially someone you have to spend hours with in a high-stakes situation."
• "Because of his sincerity and like-ability, he is able to keep people talking when other mediators might lose them."
• "She demonstrates compassion for the client, which makes the client feel that she is working hard on her behalf and tends to make the client trust her."
• "His style as a mediator is one of patience and empathy--projecting a sympathetic understanding of the party's concerns and positions."
The next most frequently cited reason for mediator success--referred to by an average of 53% of the mediation advocates--was that the mediator had high integrity, as demonstrated by his or her honesty, neutrality, trustworthiness, protection of confidences, etc. Examples of these comments include:…
Rounding out the top three most frequently cited reasons for mediator success, and referred to by an average of 47% of the mediation advocates, was that the mediator was smart, well-prepared, or knew the relevant contract or law. Examples of the responses include:…
|
Average across All Respondents and All Mediators
| |
Description
| |
Confidence-building attributes
| |
Friendly, empathic, likable, relates to all, respectful,
|
60
|
conveys sense of caring, wants to find solutions
| |
High integrity, honest, neutral, trustworthy,
|
53
|
professional
| |
Smart, quick study, educates self on dispute,
|
47
|
Process skills
| |
Patient, persistent, never quits
|
35
|
Asks good questions, listens carefully to responses
|
28
|
Diplomatic, makes both sides feel they are winning,
|
21
|
softens the blows of bad news, makes suggestions
| |
tactfully
| |
Proposes solutions, creative
|
18
|
Candid, firm as necessary (other than in pointing out
|
17
|
legal/contractual strength/weakness)
| |
Keeps parties focused on issues, manages issue ordering
|
16
|
Understands people, relational dynamics
|
13
|
Calm, deliberate
|
12
|
Flexible, capable of varying process to fit situation
|
10
|
9
| |
Good sense of timing, knows when to set deadlines/apply
|
8
|
pressure
| |
Uses humor
|
8
|
Allows venting, manages emotion
|
8
|
Reframes issues
|
7
|
Confident, optimistic
|
5
|
Persuasive
|
2
|
Evaluative skills
| |
Does useful reality testing regarding legal/contractual
|
33
|
weaknesses, evaluates likely outcome in
| |
court/arbitration, candid regarding same
| |
The confidence-building attributes referred to above were cited by respondents as key elements of mediator success more frequently than were the various skills used by mediators to bring about agreement. The most frequently mentioned mediator skills were patience and persistence (referred to by an average of 35% of the mediation advocates); providing useful evaluations or reality-testing regarding the likely outcome of the dispute in court or arbitration (33%); and asking good questions and listening carefully to responses (28%).
Some comments relating to the mediator's patience and persistence include:
• "Her patience was outstanding. The parties were very far apart: we didn't give this case a chance for success .... The parties kept insisting, 'Mediation is not going to resolve this matter.' However, her patience resulted in a settlement."
• "Most important ... is that he has unlimited tenacity, is indefatigable, is always working, phoning/E-mailing night and day, weekends, from wherever he is and wherever you are in the world."
• "She never gives up, never. Some mediators will walk out at the end of the day, and say call me if I can help in the future. In contrast, at the end of the day she will get contact numbers and call each lawyer separately, and continue to sort out the problems .... I've had many conversations with her at [9:00 p.m. and 10:00 p.m.] to try to settle some element of a case."
Comments involving the mediators' provision of useful evaluations or reality-testing regarding likely outcomes in court or arbitration include:
• "She readily identifies--and expresses in a nonconfrontational fashion--the most significant weakness or downside in each party's position."
• "I think the first thing that is great ... is that he is a retired judge and knows the risks of litigation and is able to communicate those risks to my clients with confidence. For me as an attorney, trying to get people to settle for a reasonable financial offer is incredibly difficult--I could do it all day, but my clients tend to believe his opinions, and glean a firm understanding of the risk of taking a case to litigation and the possibility of spending more money than what you could get in a pretrial settlement."
Comments involving the importance of asking good questions and listening carefully to responses include:
• "I think primarily he's a good listener, which is key for a mediator to be successful. He validates everyone's position in a way that is not wishy-washy, but is responsive to the concerns of the various constituencies."
The respondents also valued the following skills/attributes:
• Diplomacy and tact (21%)--"She points out the positive points in each round of negotiation, such that both sides feel they're winning."
• Proposing solutions/being creative (19%)--"She's creative. She thinks outside the box. She hears the problem, listens well, and will push people to create their own resolution."
• Keeping the parties focused (15%)--"He helped us focus on issues more. He made us ask what we really needed."
• Being candid/firm as necessary (15%)--"She is very patient and inherently likeable, but she is also very direct when she needs to be," and, "His straight-talking, frank input makes him one of the most successful mediators we've used."
• Understanding people and/or relational dynamics (13%)--"His insight into people is phenomenal. He knows what buttons to push, when to push them, and how hard"; "Not only does she understand people's behavior and motives, she also remembers everyone. She scopes out my clients like a good trial lawyer with a jury," and "He knows the roles of the various parties in the process--clients and attorneys. He knows what our [that is, the lawyers'] needs are, and what our clients needs are. He doesn't put us down in front of the client."
• Being calm and/or deliberate (12%)--"Her ability to remain calm and keep the parties calm kept the parties together," and, "He has a calming and peaceful demeanor. Each client who's there feels comfortable. He creates a safe zone.
A comparison of the advocates' views in Study Two with the mediators' views in Study One reveals both similarities and differences. The two skills that both the mediators and the advocates agreed were important were being patient and persistent, and proposing solutions and being creative. They differed notably in the importance they assigned to mediator evaluation skills, a factor regarded as important by 33% of the advocates, but by fewer than 10% of the mediators. Advocates appear to regard evaluation skills as more relevant to mediation success than do the mediators.
SUCCESS COMPONENTS
In addition to determining which mediator skills and attributes were viewed by mediation advocates as most important for mediator success, we also sought to determine whether the reasons for mediator success are the same for all successful mediators, or whether different mediators succeed for different reasons.
In order to make this determination, we divided all the reasons for mediator success into five categories: evaluative skills (the mediator's ability to encourage agreement by evaluating a party's likelihood of achieving its goals outside of mediation, typically a prediction of the likely outcome if the matter were decided by a court or an arbitrator); process skills (those skills by which a mediator seeks to encourage agreement, not including evaluative skills), and three confidence-building attributes--friendly/empathic, high integrity/honest, and smart/well-prepared.
We then calculated each mediator's mean score for each category--the average of the scores that the mediator received from each respondent on that category. We also determined, for each mediator skill or attribute, whether the mediator was at or above the mean of all 26 mediators on that skill or attribute, one standard deviation above the mean, or one standard deviation below the mean. Finally, we created an overall score for each mediator, which was a function of the scores that the mediator had received in each category.
We found that the advocates viewed different mediators as achieving success as a result of different combinations of skills and attributes. Some of the mediators with the highest overall scores were rated as outstanding--more than one standard deviation above the mean--in the categories of being friendly/empathic, and possessing excellent process skills or evaluative skills. Others were rated as outstanding for possessing high integrity and excellent process or evaluative skills; while still others were rated as outstanding in the categories of being smart, well-prepared, knowing the relevant contract or law, and possessing excellent evaluative skills.
The sole characteristic shared by nearly all the 13 mediators in the top half on the overall scores was that 11 of the 13 were a standard deviation above the mean on at least one of the confidence-building attributes. This, we think, corroborates the Study One finding about the importance of confidence-building attributes for mediator success.
We found no significant correlation between a mediator's gender and that mediator's overall score, or that mediator's scores on any of the five skills or attributes. Female mediators were not cited significantly more or less often for being friendly and empathic than were male mediators, nor were female mediators cited significantly more or less often for their process or evaluative skills than were their male counterparts.
Nor do our results reveal any significant difference between the overall evaluations or individual skills/attributes scores of the four mediators who were former judges compared to those mediators without judicial experience. The former judges were neither significantly more often cited for their evaluation skills, nor significantly less often cited for their process skills, than were other mediators.
To be sure, neither the four former judges who participated in this study, nor the other mediators who did so, are representative of all practicing mediators. Each of the mediators in Study Two is highly successful, and it seems likely that the process skills of the four former judges play some role in their success. In brief, whatever merit there may be to the view that former judges are more highly valued as mediators for their case evaluation skills than for their process skills, we found no support for that view among this small sample of highly successful mediators.
The only significant correlation between a mediator's score on one skill or attribute and that mediator's score on another skill or attribute is found in the relationship between the mediator being viewed as smart, well-prepared, knowledgeable about the relevant contract or law, and the mediator being viewed as providing useful outcome evaluations.
Not surprisingly, those mediators who received high scores on smart/well-prepared/knowing relevant contract or law were significantly more likely to receive high scores for providing useful outcome evaluations--typically a function of knowing the relevant contract or law.
STUDY THREE--REASONS FOR MEDIATOR FAILURE
The fact that all the mediators in Studies One and Two are successful can be seen in some respects as a weakness of those studies. In Study One, we could not compare the views of successful mediators concerning their skills and attributes with the views of less successful mediators.
Nor, in Study Two, could we compare the advocates' views of the skills and attributes of successful mediators with their views of the skills and attributes of unsuccessful mediators--no unsuccessful mediators were included in Study Two.
Study Three is, therefore, an attempt to compensate, at least in part, for this weakness by exploring the views of mediation advocates concerning the ways in which some mediators--not those participating in Study Two--failed to satisfy their expectations.
In order to collect this information, we sent each of the 216 mediation advocates who responded to the Study Two questionnaire a second letter in which we asked whether they had ever participated in a mediation in which the mediator had engaged in conduct that reduced the likelihood of a settlement, or after which they decided that the mediator was so unsatisfactory that they would never again use that mediator. We also asked what mediator conduct had reduced the likelihood of a settlement, or led the respondents to conclude they would never again use that mediator.
The most common criticism of the unacceptable mediator, reported by 48% of the respondents, was that the mediator lacked integrity. Examples of such conduct include:
• "I had one mediator ... disclose information provided in confidence. ... Once it surfaced that the mediator had breached confidence, clients and lawyer were outraged and [the] mediation failed."
• "Dishonesty in reporting the other side's position--confirmed later in conversation with counsel."
• "I've had mediators come in and say to both sides that their case stinks. No credibility there."
• "One mediator ... had his view of the appropriate settlement, and appeared not to be interested in entertaining any other resolution."
The absence of other confidence-building attributes was also the basis of considerable criticism. Twenty percent of the advocates criticized mediators who lacked empathy, and appeared more interested in themselves than in the parties. Such comments include:
• "When a mediator shows disinterest it becomes readily apparent to the attorneys and the parties .... The disinterest can be expressed with both language and actions or inaction."
• "Mediators who are more interested in listening to themselves talk rather than the parties are always counter-productive and frustrate the parties. We spend way too much time coming up with strategies to shut them up or keep them out of our conference and/or discussing what pompous asses they are."
• "Endless talk about themselves; expressing frustration on a personal level when clients would not relent to arm twisting."
Seventeen percent of the respondents commented that the mediator did not understand the issues or the law, or was not well-prepared. Among their comments:
• "It was clear that the mediator didn't understand either side's position, and could not convey those positions effectively."
• "The mediator did not understand the legal issues in the case."
• "The mediator did not understand the case, had not done his homework, and thought that with a coterie of some 15 or 16 attorneys, merely saying, 'Why can't you fellows get together and settle the case?' was going to be a successful tactic."
The process skills failure that was far and away the basis of the most criticism, referred to by 24% of the advocates, was that the mediator was not forceful in seeking a settlement, but just went through the motions of mediation, doing little more than carrying messages back and forth between the disputing parties:
• "I have participated in several mediations with mediators who merely relayed offers and counter-offers to the parties. The utter passivity of those mediators did not provide any reality checks for the parties and did nothing to assist the parties in understanding and evaluating alternative theories, solutions, or potential for liabilities."
• "The mediator was virtually useless. That is, all he did was relay messages without ever pushing either side to get off of ridiculous positions--including push us when we more than deserved to be pushed."
• "We had a mediator who refused to take control of a mediation that was spinning out of control. We needed him to get the mediation back in control and even asked him to do so. The mediator responded that 'you guys know the facts and parties better than I do' ... The parties ended up further apart than before."
The absence of other mediator skills was not the subject of frequent advocate criticism. Only 11% commented on the unsuccessful mediator's lack of patience/persistence; 7% commented on poor evaluative skills; 7% on a lack of flexibility in approach; 3% on a lack of creativity; 2% on not keeping the parties focused, and 2% on a poor sense of timing.
We suspect that the reason for the comparatively low frequency of these criticisms by the Study Three advocates is because the absence of these skills and attributes pales into insignificance when compared to the central Study Three criticisms:
• that the mediator lacked integrity, cared more about himself/herself than resolving the dispute, or was unprepared/uninformed about the relevant issues and/or law; and
• that the mediator did not demonstrate any process or evaluative skills, but was merely a messenger, transmitting messages from one party to the other.
Faced with these behaviors, it is hardly surprising that the respondents went no further in their criticisms, and their failure to do so is not necessarily inconsistent with the views of the Study Two advocates concerning the importance of skills such as patience/persistence, tact/diplomacy, asking good questions/listening carefully, and being capable of providing useful outcome evaluations.
WHAT THE STUDIES MEAN
The central conclusion to be drawn from these three studies is that a--if not the--core element in mediator success is the mediator's ability to establish a relationship of trust and confidence with the disputing parties.
Most of the Study One mediators thought that achieving such a relationship was a result of their convincing both parties that he or she truly cared about their needs and concerns; a few attributed their success to their honesty, strong ethics, and trustworthiness. The advocates in Study Two, however, assigned essentially equal importance to these different attributes as well as to the mediator's knowledge and preparedness, suggesting that mediator success in gaining the trust and confidence of the parties is equally likely to be associated with any of these attributes.
Both the mediators in Study One and the advocates in Study Two regarded persistence and creativity as important for mediator success. Neither of those skills, however, was as widely regarded as important as were the mediator's confidence-building attributes.
Study Two also suggests that different mediators can be highly successful on the basis of different types of skill sets--process skills for some mediators, evaluation skills for others--and nearly all highly successful mediators are widely viewed as possessing at least one of the confidence-building attributes.
Study Three approaches the reasons for mediator success from a different perspective--asking why some mediators are not successful. The Study Three results reinforce the conclusions of Studies One and Two regarding the importance of obtaining the parties' confidence. According to the advocates who responded to Study Three, the most common cause of mediator ineffectiveness was that the mediator lacked integrity--he or she disclosed confidences, gave inconsistent evaluations, was biased, etc.
Few of the Study Three respondents viewed a lack of mediator skill as a central element in the mediator's lack of success, with one prominent exception. Not surprisingly, the Study Three respondents reported they would be unwilling to use a mediator again if that mediator contributed essentially nothing to the search for a resolution to the parties' dispute other than to relay messages from one party to the other.
The common theme running through Studies One, Two, and Three, then, is that gaining the trust and confidence of the parties is the most important element in mediator success. The mediator's skills are also important, but these were less often cited as reasons for mediator success than were the mediator's confidence-building attributes.
Finally, and of considerable importance, there is no single model of the successful mediator. Different mediators succeeded on the basis of different combinations of attributes and skills.
ASSESSING THE IMPLICATIONS FOR MEDIATORS, TRAINERS, AND ADVOCATES
Perhaps the most important finding of this research for the practicing or aspiring mediator is that the keys to mediation success are quite straightforward:
• obtain the trust and confidence of the disputing parties by being friendly and empathic, by demonstrating high integrity, or by being intelligent, well-prepared, and knowledgeable in the relevant law or contract, and
• be capable of taking advantage of the trust and confidence of the parties to assist them in resolving their dispute by exercising one of their skills.
Some aspects of achieving success as a mediator can be achieved by training, but others cannot:
• The mediation trainer cannot train aspiring mediators to be smart or to know the relevant law or contract, but he or she can emphasize the importance of being well-prepared for mediation. Similarly, the trainer can emphasize the importance of integrity, for example, by using simulations to put trainees in situations in which they are tempted to act inappropriately by breaching a confidence in the hope that doing so will aid in obtaining a settlement.
• The instructor cannot teach empathy--the mediator's genuine concern for the needs of each party--but he or she can teach ways of showing genuine concern through demonstrations and interactive exercises.
• Many process skills can and are being taught and practiced in mediation training. Although some aspiring mediators will demonstrate greater aptitude for some of these skills than for others, it is worth remembering that the most widespread criticism made by the Study Three advocates was not of mediators who lacked a particular skill, but of the mediators who were perceived as doing nothing to assist the parties other than relaying messages.
* * *
Finally, the findings of these studies could be useful to advocates, such as attorneys and labor negotiators, who engage in mediator selection. It is commonplace for advocates in search of a mediator to inquire about a particular mediator from others who have used that mediator's services. Most often, the inquiry consists of asking, "How good a job did X do for you in the ABC mediation?" or words to that effect.
Based on this research, however, we advise advocates to ask more pointed questions relating to the mediator's empathy, integrity, knowledge of the relevant contract or law, persistence, etc, focusing on those skills or attributes that the advocate believes would be most useful in resolving the particular dispute for which a mediator is being sought.
In sum, a better understanding of the attributes and skills of successful (and unsuccessful) mediators can be useful in improving the practice, teaching, and selection of mediators.
Reasons for Mediator Failure
Description
Lack of confidence‑building attributes
Lack of integrity, not neutral, disclosed confidential information, failed to 48
accurately convey position, inconsistent evaluations, interested in
settlement at all costs, too quick to reach conclusions
not interested, did not listen
Did not understand issues/applicable law, not well prepared 16
Lack of process skills
Not firm/forceful, just went through the motions, just delivered messages 24
Lack of patience/persistence, quit too easily 11
Not flexible in approach, had his/her approach and would not vary to fit 7
Situation
Failed to propose solutions, not creative 3
Did not keep the parties focused 2
Poor sense of timing, did not know when to push/when to back off 2
Lack of evaluation skills
Faulty/no evaluation 7
The research: A study of mediators is followed up with a poll of mediation advocates designed to get at the heart of why mediation works, and another part of the study looks at why mediation fails.
Implications: Those hiring neutrals must ask more pointed questions.
Goldberg is a mediator, and a professor at Northwestern University School of Law in Chicago. Shaw is a mediator in JAMS' New York office, and teaches at New York University Law School. The article is adapted from "The Secrets of Successful (and Unsuccessful) Mediators," which appeared in 23(4) Negotiation Journal, 393-418 (October 2007) (available at www.blackwellpublishing.com). The Negotiation Journal version contains data tables and methodological information.