ABA Section of Dispute Resolution -- Task Force on Improving Mediation Quality Final Report.
In 2008, the ABA Section of Dispute Resolution issued a Final Report on mediation quality. This report is available on-line.
The Task Force narrowly focused on mediation quality in private practice civil cases where the parties are usually represented by counsel. The methodology involved the use of ten focus groups, and participants included outside counsel, in-house counsel, and non-attorneys. The Task Force also collected more than 100 responses to questionnaires from mediation users and mediators.
The task force identified four issues as important to mediation quality:
- Preparation for mediation by the mediator, parties, and counsel
- Case-by-case customization of the mediation process
- "Analytical" assistance from the mediator
- "Persistence" by the mediator
There are many interesting tidbits in the report, making it worth reading, even if the points reinforce our own opinions. Here are a few:
- While many mediators find pre-mediation discussions helpful, some court programs do not permit such contacts
- More than 96% of the respondents to the written survey thought pre-mediation preparation was important
- Sophisticated repeat mediation users wanted input into the mediation process itself
- Parties frequently responded that lawyers should be as prepared for mediation as for trial
- Elements that can be customized to each dispute include: timing of the mediation, exchange of information, whether to have opening statements
- 81% of users and 77% of mediators believed the optimum time to mediate was after completing "critical" discovery but before completing all discovery
- 36% of users and 78% of mediators say mediation before filing suit would be appropriate in half or more cases
- 95% of users thought it important for mediators to make suggestions, 70% thought it important to give opinions, and 100% thought it important to suggest ways to resolve the dispute
- Respondents identified a variety of factors that would influence whether it was appropriate for a mediator to provide an assessment of strengths and weaknesses, including whether assessment was requested, mediator expertise, mediator confidence in assessment, mediator pressure, joint or caucus session, timing, impasse, and impartiality
- "Evaluative" mediation means different things to different people, with half or more of the parties (but not the lawyers) objecting to strongly worded mediator opinions about settlement terms (e.g., "I think this is the best you're going to get")
- 93% of users said that if a mediation session ends without agreement but some potential to reach one, the mediator should follow-up with each side
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