A small group of mediators and attorneys have made it a part of their practice for many years to insist upon pre-mediation caucuses as a regular part of mediations, arguing that they create an opportunity to build trust and increase the chance of success of the mediation. Pre-mediation caucuses are private meetings, held in advance of the mediation session, where the mediator meets with the attorney and client for one party to discuss the process of the mediation and relationships among the parties (but not the merits of the dispute), and then holds the same meeting with each of the other attorneys and parties to the dispute. An American Bar Association task force now reports that the proponents of holding such meetings ahead of mediation sessions are onto to something.
The Task Force on Research on Mediator Techniques of the American Bar Association Section of Dispute Resolution recently completed its mission of reporting on what existing scientific studies can tell us about the effectiveness of one mediation technique or process over another. The DR Section instituted the task force because while lawyers and mediators frequently offer opinions on what does or does not work, and training programs typically describe best practices, empirical information has not been well understood or widely available to practicing professionals.
The ABA Task Force Used Rigorous Criteria
After eliminating a number of studies that did not meet the review standards, the task force analyzed 47 studies to see if specific actions taken by the mediator had an impact on mediation outcomes (including settlement) and other important results, such as party and attorney perceptions of the process/mediator, and improved party understanding and communication.
The task force used rigorous criteria and concluded that while it could not definitively state that any category of mediator actions had “clear, uniform” effects across all studies, it could report that a few mediator actions have a greater potential for positive or negative outcomes. (Full disclosure: I served on the task force but a few lead scholars did almost all of the analysis.)
One of the more useful findings is that separate pre-mediation meetings or “caucuses” have the potential to go a long way to get the case resolved if they are used properly.
Pre-Mediation Caucus Not the Time To Discuss Merits
Many of the studies showed that if a pre-mediation caucus with the mediator is used to establish trust and build a relationship with the parties, the likelihood of settlement is increased and post-mediation conflict is decreased. It is important, however, to keep the discussion limited to trust and process issues. If a pre-mediation meeting with the mediator is used to talk about the substance of the dispute or settlement proposals, the technique can sometimes have a negative effect on settlement and post-mediation conflict.
This finding aligns with a recent study at Chicago’s Center for Conflict Resolution that successfully piloted using pre-mediation meetings, as well as my own experience in my mediation practice. It also aligns with the reported success of experienced mediators who use a series of caucuses in every mediation instead of one long mediation day, as well the Guided Choice process where the neutral is brought in early and works with each side in meetings to design a process long before the parties enter the negotiation phase.
Pre-Mediation Caucuses are Consistent with Neurobiology
In addition, while neurobiology and stress hormone studies were not part of the studies reviewed by the task force, holding pre-mediation caucuses to build trust ahead of a mediation session – where people who are angry with one another are in close proximity — makes sense in terms of the neurobiology of mediation and decision-making. When people are confronted by social threat, they respond as they do when confronted with a physical threat and the resulting fight or flight stress response is not optimal for good decision-making. Holding a pre-mediation meeting or series of meetings seems to give people the time they need to enter the negotiation phase without being overwhelmed by the physical and cognitive impacts of the stress response.
Attorneys who are tuned into their clients and are seeking to problem-solve based on a client’s interests rather than just to impress the client with an adversarial presentation or hard line position at mediation, will easily recognize the benefit of a process step that helps clients make decisions when they are not awash in stress hormones and are able to use the regions and networks of their brains designed for higher level thinking (and not just the systems of their bodies and brains that were designed to help them escape a predator or engage in physical fighting).
A Number of Other Mediator Techniques Also Positive
Other potentially positive mediator actions noted by the task force (keeping in mind the caveat that some of the studies showed there might be no effect), include eliciting the parties’ suggestions or solutions; giving more attention to disputants’ emotions, relationships and sources of conflict; working to build trust and rapport; expressing sympathy; praising the disputants; and structuring the agenda.
These findings are interesting because in a typical mediation in a personal injury or business dispute in Illinois, there are no pre-mediation meetings, emotions are not explicitly acknowledged, and relationships are given minimal attention.
It might be tempting to think that these findings on potentially successful techniques only apply to certain types of cases, such as family or community disputes. However, the task force looked at a wide variety of cases. Of the 47 studies reviewed by the task force there were 13 studies on general civil cases, three studies on small claims cases, nine studies on domestic relations cases, four studies on community mediations including minor criminal disputes, three studies on employment disputes, and one study on construction disputes. Other studies included collective bargaining and international disputes. There were also five studies involving simulations. Studies included both cases where a lawsuit had been filed and disputes that had not yet gone to court. Thus, the nature of the underlying claim did not dictate whether the particular mediator actions were useful.
The ABA Dispute Resolution Section Council recently approved the final task force report, which should be posted on the ABA website in the coming weeks. In the report, the task force acknowledges the necessity of additional research, and proposes the development of a research agenda and guidelines. In the meantime, it makes sense to consider a pre-mediation meeting focused on trust building and process design for your next mediation.