The Fall issue of ACR’s Conflict Resolution Quarterly had a number of very informative and interesting articles that are well worth summary, comment and praise. See Vol 28, No. 1. Of particular interest to me were two empirical studies:
- “Do Mediators Walk Their Talk in Civil Cases?,” by James A. Wall, Jr. and Suzanne Chan-Serafin; and
- “Fairness, Understanding, and Satisfaction: Impact of Mediator and Participant Race and Gender on Participants’ Perception of Mediation,” by Lorig Charkoudian and Ellen Kabcenell Wayne.
The first study adds a very interesting twist to our understanding of the role played by our “mediator demeanor” or “style.” The second adds texture to what we know and think we understand about gender and race dynamics, while highlighting some unexpected findings.
A. Walk Their Talk
In Walk Their Talk, the authors observed and analyzed 100 mediations in two cities, looking in particular at opening remarks and, as to stated strategies, follow through:
(1) What goals did the mediators state for mediation;
(2) whether they gave any preliminary or procedural advise to the participants;
(3) whether they described themselves or the process;
(4) whether they described their own strategy or style in mediation;
(5) actual mediation style used; and
(6) the correlation, if any, to particular styles and/or the divergence between stated and actual styles.
Of these, Items 5 and 6 were the primary purposes of the study, and the others were background material.
Not surprisingly, most mediators do state mediation goals, give some procedural advice to the participants, and give some procedural advice to the participants. As to goals, the most frequently stated goal at 52% of those who did state goals, was to reach an agreement. The next was expedience but at only 8 instances and 8% “it was the distant runner up.” It and the other two stated goals were noted with similar comparative frequency: emotional closure, 4 times, and as a “test run” for litigation 4 times. Interesting to the authors and to me, no mediator mentioned either an amicable resolution or protection of a future relationship as a goal. Id. at 9.
As to advice, the three biggies of which were to be cooperative and flexible (25 count; 26%), provide valuable information (18; 19%), and be civil and emotionally controlled (16; 17%). Again, there were very surprising results: only a de minimus number of mediators advised the participants to listen (2; 2%), to be honest (2; 2%)! (In contrast, I was relieved to learn that only 2 and 1 mediators, respectively, advised the parties to “feel empowered” or to “trust the mediator.”) See Table 1.
As to descriptions of the mediator or the process, more than half described the value of mediation (55; 57%), and cited their own experience (51; 53%). Slightly less than half noted the risks and costs of trial (45; 47%). In a remarkable show of good manners and restraint, only 8 (8%) criticized the legal system, but it could be that the others blew of steam on the earlier assessments regarding efficiency and decreased risks. Id.
In contrast to the other items, only 52 of the participants referred to their own style in mediation in the opening remarks. From their descriptions, the analysts developed three categories:
(1) neutral style: mediator stated he or she “would not take sides, would be neutral, act as a referee, be impartial, not judge, and so on” (see p. 11);
(2) evaluative style: mediator stated he or she “would evaluate, that is, point out the strengths and weaknesses to each side so each would have a better understanding of its case and that of the other” (id. at 12); and
(3) pressing style: the mediators “clearly indicated they would press on or both sides, to lower their expectations, move them of their positions, and persistently push then toward settlement” (id.).
Of the 52 who stated a style, the individual raters could agree on the descriptions of 49. 26 of those 49 indicated they would be neutral, 16 indicated they would be evaluative, and 10 indicated they would press the participants. “In no case did the mediators state they would use a transformative, narrative or pragmatic strategy.” Id.
The crux of this study, however, was the comparison between stated and actual styles-e.g., did these mediators in fact “walk their talk”—and if not, with what results. Looking first at consistency, mediators who stated they would be pressing were most consistent: 6 of the 10 were pressing, 3 were evaluative and only one was neutral. Mediators who described their style as evaluative came in second in terms of how well they walked their talk: 6 of the 15 were evaluative, 9 were pressing, and none were neutral. Mediators who described their style as neutral were quite abysmal in meeting this representation to the participants: only 6 out of the 24 were in fact neutral; 5 were evaluative; and a whopping 13 or 54% were actually pressing!
Looking at the various data, I am struck by several points. First, I was amazed to see that the pressing mediators were most successful overall among those performing within their stated style, with an 80% success rate. In contrast, while neutral mediators were the least successful of the three when performing in a neutral style—then they had only a 16.6% success rate!
Second, I found it very interesting that the divergence which resulted in the biggest drop in success was evaluative to pressing. Intuitively, I expected the shift from neutral to pressing would result in the biggest drop off in success rates. (The pressing mediators did not have any drop in success that was markedly associated with any shift or lack thereof.)
Third, the authors provided overall success rates of the three categories as actually practiced, versus as forecasted. Here, actual (rather than represented) neutrals had an overall success rate of 2 out of 29 or 6.87%; actual evaluatives had an overall success rate of 11 out of 29, or 37.9%; and pressing mediators had an overall success rate of 16 out of 49, or 55.17%.
Although it’s difficult to say what exactly the data means, it does suggest an interesting lesson to me. Over the years, I have taken many hours of mediator training and engaged in many hours of mediation practice. Nonetheless I always seem to have the same basic style and, although it appears to work well for me, I have intermittently wondered over the years if it is a “proper” one, or if I should work on changing it.
Specifically, although I do not state to the parties what my “style” is, I always start in an empathetic but neutral fashion, by letting all sides unleash, be it emotions, statistics, facts, case law, past wrongs, whatever. Then, at some indefinable point, when I feel the parties have gotten all they can out of that stage and/or the frustration caused by dwelling on the past to the party ready to move on is outweighing its benefit or necessity to the other party, I essentially say, “Ok, but what are we going to do now?” At that point, I start evaluating and pressing the parties. Sometimes quite hard, depending on the facts, the law, the parties; the reasonableness of their expectations, their emotional vulnerability, sophistication or remove from the issue, and the type of matter.
This study suggests to me what I have long suspected: that the parties don’t really want mediators to be bumps on logs, making “Rogerian ‘uh-huhs’” as mediator Peggy Hermann has put it. They also are not served by mediators taking a single style or tact that is unresponsive to the needs of the given mediation. Rather, they want us to provide some actual insight, evaluating, pushing, reality testing etc., e.g., some value beyond talk therapy. But, that talking it through phase is still absolutely imperative and cannot be short changed.
B. Perceptions of Fairness, and Gender and Ethnicity in Mediation
In Fairness, Understanding, and Satisfaction, the authors reviewed existing literature and studied the “Impact of Mediator and Participant Race and Gender on Participants’ Perception of Mediation.”
The authors note the following points that have been revealed in past studies concerning gender (citations omitted).
- In matters of gender, actual behavioral differences may have less effect than perceived differences.
- Although male and female mediators tend to use the same techniques, they tend to use them for different purposes. For example, they tend to rephrase etc. about the same, but usually do so to clarify what was said, while men do so to control the mediation. Also, men are more likely than women to make suggestions or to attempt to alter the parties’ positions.
- Participants’ perception of a mediator’s style is likely to conform more to gender stereotypes than actual mediator behavior.
- With a couple of exceptions, most studies found no difference in the relative success rates of male and female mediators.
- There will generally be more formulations and other talk between mediators and participants of the same gender, but this does not appear to correlate in any way to participant satisfaction with the mediation process.
The authors then noted the following points revealed in studies related to race and ethnicity.
- Culture affects how conflict and compromise are addressed.
- Culture is very complex, and often not simply reducible to a given and perhaps more “obvious” variable regarding race or ethnicity. For example, a member of an ethnic community will identify with both that community, and also the larger national community, and stereotypes presuming only one identification will lead to flawed reasoning and expectations.
- African Americans tend to be more high-keyed and animated in conflict situations, while middle class whites tend to be more low-keyed and dispassionate.
- African Americans are less likely to avoid conflict or seek third-party assistance than Asian Americans or Latinos.
- With some exception, studies do not generally indicate that mediator’s styles are affected by their ethnicity.
- Although there are few studies regarding the matching of race or ethnicity in mediation, two studies have suggested that matching mediation participants by age or gender may have more meaningful impact.
- One study of small claims mediation in New Mexico revealed that minority claimants (usually Hispanic) received lower payments than Anglo claimants when one or both of the mediators was Anglos, but not when both mediators were of a minority. However, the minority claimants were still more satisfied with the mediation process than the more “successful” Anglo participants. One explanation offered, which sounds quite plausible to me as a resident of New Mexico with some familiarity with the competing cultures here, is that Hispanics were less likely to focus on monetary goals, so more likely to accept non-monetary solutions, than Anglos.
After a review of the literature on gender, the authors posited several hypotheses regarding the perceptions of participants who lacked a gender match with the/a mediator:
1. They will be less likely to engage in free communication.
2. They will be less likely than gender match participants to feel the mediator listened without judgment.
3. They will feel like their control decreased over the course of mediation.
4. They will be less likely to feel that conflict can be dealt with productively.
5. They will be just as likely to believe the mediator was biased.
6. They will be just as satisfied with the mediation process.
Moreover, the authors also hypothesized that, in all cases, the perceptions would be further exacerbated if the other party has a gender match, e.g., the participant was not only unmatched but also out-numbered.
The results of the author’s own study were surprising in some ways and not in others. Unmatched parties were not less likely to engage in free communication (H1), unless he or she was also outnumbered. Both groups, unmatched and outnumbered, “were significantly less likely to see the mediator as listening” (H2), and the effect was stronger when they were outnumbered. Neither H3 or H4 where borne out, whether unmatched or outnumbered—gender differences did not correlate to perceptions of loss of control, or a general apathy about the effective handling of conflict. However, being either unmatched or outnumbers “was significantly related to the participants’ perception that the mediator took sides, inconsistent with Hypothesis 5 and other studies showing that gender match does not affect perceptions of mediator bias.” Moreover, the effect was stronger when the participant was also outnumbered. Finally, both groups, unmatched and outnumbered, had less satisfaction with the mediation process (H6).
As earlier studies had predicted, race and ethnicity had less effect on perceptions and satisfaction than did gender. However, there was some effect, and the effect was significant as to perceptions that the mediator was not listening to the participant, and as to progressive and long-term loss of confidence in the efficacy of conflict resolution.
Based on the foregoing, the authors stress the need to try to match up mediators by gender and, to a lesser degree, race or ethnicity. To meet this challenge, the authors suggest greater use of co-mediators to match participants and mediators, or to avoid such match-ups.
If you are interested in diversity sensitive arbitration, mediation, or contract ALJ services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
