Increasing Mediation Effectiveness: When is it appropriate? What makes it work? Access To Justice Conference William S. Richardson School of Law John Barkai, Chuck Hurd, Elizabeth Kent, Tracey Wiltgen June 25, 2010

Pray one hour before going to war, Two hours before going to sea, Three hours before getting married, (and four hours before going to court). - Indian Proverb – (modified)

Mediation is assisted negotiation The mediator has no power to decide the dispute Mediation has a focus on the future Do not find fault, find a remedy Even a sheet of paper has two sides The onlookers see more than the players

StageTask(what)Action(how)Result ConveningWillingness Opening Safety & hope CommunicatingExpression Negotiating Flexibility & innovation Closing Informed decisions Pepperdine

Mediation Center of the Pacific

FACILITATIVE EVALUATIVE Styles of Mediation

FACILITATIVE mediators do NOT offer opinions or suggest solutions EVALUATIVE mediators evaluate by offering opinions & suggesting solutions TRANSFORMATIVE mediators are not concerned about solutions. They want to “empower” and “transform” the parties. USPS

Facilitative mediators ASK Evaluative mediators TELL

A Mediator's View of the Bargaining Process 1. Develop a relationship with the parties 2. Get the parties unstuck - shift to “interests” not “positions” focus, or/and - get the first new money offer 3. Move the bargaining along - generate significant movements 4. Close the gap - beyond the old bottom lines

Why should you use mediation? Compared to litigation - Faster - Cheaper - Private - confidential - Less formal - Parties remain in control of their dispute Traditional reasons

Why should you use mediation? The truth is … Virtually all psychology principles work against negotiators to make them over- value their case Many negotiators need a mediator’s help overcoming strategic barriers to successful negotiations

ABA Task Force on Improving Mediation Quality Goldberg & Shaw - Successful and Unsuccessful Mediators Goodman-Loftus - Study on Lawyer Overconfidence Prof. John Barkai

American Bar Association’s Section of Dispute Resolution Task Force on Improving Mediation Quality

The 2008 ABA Report on Improving Mediation Quality (civil disputes with lawyers) Preparation Customization Evaluation Skills Persistence

Goldberg & Shaw 2005 & 2007 Traits of Successful and Unsuccessful Mediators n= 30 mediators n=216 advocates

Study 1 "How do you account for your success as a mediator? “ 75% said: Ability to develop RAPPORT with the disputing parties Develop a relationship of understanding, empathy, and trust

Why is that so important? Encourages the parties to communicate more fully with the mediator, often providing the mediator with the information the mediator needs to help the parties craft a settlement

How to build that relationship? Empathic listening, which conveys the message that the mediator truly cares about the parties' feelings, needs, and concerns (substantial majority) The mediator’s reputation for being honest, ethical, and trustworthy (some mediators)

What does a mediator do after establishing rapport? Generate novel or creative solutions Generate novel or creative solutions Attribute the mediator’s own creative ideas to the parties Attribute the mediator’s own creative ideas to the parties Use humor Use humor Combine patience and tenacity Combine patience and tenacity Persistence Persistence

Other tactics Focus parties on consequences of not settling (BATNA / WATNA) Focus parties on consequences of not settling (BATNA / WATNA) Push at the appropriate time Push at the appropriate time Assist understanding each other’s needs Assist understanding each other’s needs Remain optimistic Remain optimistic

How do you account for your success as a mediator? Ability to gain the parties’ confidence75% Ability to gain the parties’ confidence75% Friendly/empathic 75 % Friendly/empathic 75 % Honesty/integrity25% Honesty/integrity25% Ability to generate novel or creative solutions50% Ability to generate novel or creative solutions50% Patient, tenacious, never quit15% Patient, tenacious, never quit15% Sense of humor15% Sense of humor15% Understand the rhythm of a mediation;10% Understand the rhythm of a mediation;10% know when to put pressure on the parties know when to put pressure on the parties Assist the parties to understand others’ needs10% Assist the parties to understand others’ needs10% Maintaining an outwardly optimistic attitude10% Maintaining an outwardly optimistic attitude10% Focus the parties on the consequences of not10% Focus the parties on the consequences of not10% settling ; predict the likely result of trial settling ; predict the likely result of trial

Study 2 Lawyers & Parties – What lead to success? Mediator’s ability to gain the parties’ confidence (friendly, empathic, likable, etc.) Mediator’s ability to gain the parties’ confidence (friendly, empathic, likable, etc.) Mediator’s high integrity (Honesty, neutrality, trustworthiness, protection of confidences, etc.) Mediator’s high integrity (Honesty, neutrality, trustworthiness, protection of confidences, etc.) Mediator was smart, well-prepared, or new the relevant contract or law Mediator was smart, well-prepared, or new the relevant contract or law

Shaw-Goldberg – Study 2 Views of reasons for mediator success Shaw-Goldberg – Study 2 Views of reasons for mediator success AdvocatesMediators CONFIDENCE BUILDING ATTRIBUTES: Friendly, empathic, likeable, relates to all, respectful, conveys sense of caring, wants to find solutions 60%75% High integrity, respects confidences, non- judgmental 53%25% EVALUATIVE SKILLS: Useful reality testing, evaluates likely outcome; candid 33%10% PROCESS SKILLS: Patient, persistent, never quits 35%15% Proposes solutions, creative 18%50%

Study 3 Why did mediators fail? Lack of confidence-building attributes Lack of confidence-building attributes Lack of process skills Lack of process skills Lack of evaluation skills Lack of evaluation skills

INSIGHTFUL or WISHFUL: Lawyers’ Ability to Predict Case Outcomes Goodman-Delahunty, Hartwig, Granhag, & Loftus 16 Psychology, Public Policy & Law, No. 2, 1–157 (2010) Lawyer’s are overconfident predicting trial outcomes Lawyer’s are overconfident predicting trial outcomes Greater confidence  greater overconfidence Greater confidence  greater overconfidence Accuracy did not improve with experience Accuracy did not improve with experience Men were more overconfident than women Men were more overconfident than women Predicting Trial Outcomes