Some commercial lawyers think mediators are there to bang heads together. But what do forceful mediation techniques look like and do they work?
In a recent article published on Law360, a commercial mediator described a conversation he had with a New York litigator about mediation. The lawyer remarked:
“Do you know what I wish mediators would do? Be more forceful. I wish that mediators would be more forceful. Even with me.”
This is symptomatic of a widespread perception among many hard-nosed litigators that a mediator is there to bang heads together and force settlement. But how does this fit with mediation's core values? And, perhaps more importantly, does it work?
Preserving Mediations Core Values
For many of us, this goes against the core values of mediation, which is above all consensual.
The traditional facilitative mediation model teaches mediators to provide a flexible process that facilitates successful negotiation. If you want an opinion, go to expert appraisal or early neutral evaluation. If you want a decision, go to court. The facilitative approach is designed to ensure mediator impartiality and party empowerment.
Indeed, some mediators have taken it a step further with the concept of transformative mediation. This is really designed to preserve mediations core values such as self-determination and transparency.
It may be a case of different horses for different courses. The concept of transformative mediation and self-determination may be particularly effective in emotionally charged disputes, or where the relationship is an important issue.
In the commercial realm, however, there remains a stubborn demand from some quarters for a more evaluative approach. If clients want it, is it not right to provide it? The question then becomes whether it is effective.
Does it Work?
The author of the Law360 article makes a simple point when he says that, in his experience, ‘a lawyer’s natural response to mediator forcefulness is forceful resistance.’ In his view, it gives rise to questions of the mediator’s legitimacy, which makes settlement more difficult to achieve - after all, what gives the mediator the right to pass judgment?
And yet, many mediators report success with this approach. Commercial mediator Andrew Fraley, for example, has developed the popular ‘mediated settlement conference’ - where the mediator takes a much more hands-on approach to encouraging settlement.
There is even research to suggest that this ‘forceful resistance’ from parties, is actually a healthy response and can actually increase the chances of negotiation success. Experiments conducted at Harvard and Columbia Business Schools suggested a positive correlation between ‘mediator hostility’ and willingness to reach an agreement. One reason put forward was that the perception of the mediator as a common enemy could positively impact the relationship between the two sides.
A More Nuanced Approach
Given the mixed evidence, perhaps a more nuanced approach is required. Mike Talbot is a highly-regarded workplace mediator, but many of his insights apply to all forms of mediation. He notes that inexperienced mediators are often not assertive enough. He considers that a mediator isn’t there to ‘force’ settlement, but that a confident, assertive manner can make a world of difference. You can listen to more on his approach here:
What do you think? Is forceful mediation effective? If yes, when would it be appropriate? Share your views in the comments section below.
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