ABA Task Force Shows How To Improve Mediation Quality

In January 2006, the American Bar Association Section of Dispute Resolution formed a Task Force to investigate factors that define high quality mediation practice. Over the following two years, the Task Force organized a series of ten focus group discussions in nine cities across the United States and Canada. The Task Force also collected responses to questionnaires from mediation users and mediators, and conducted telephone interviews with individuals who have been parties in mediation. Recently, the ABA issued its final report on the Task Force’s findings which including recommendations for improving mediation practice

The Task Force identified four issues as important to mediation quality based upon responses from mediation users, who consistently identified them as areas where steps could be taken to improve mediation quality:

  1. Preparation for mediation by the mediator, parties, and counsel
  2. Case-by-case customization of the mediation process
  3. “Analytical” assistance from the mediator
  4. “Persistence” by the mediator

Preparation for Mediation

None of the approaches to mediation preparation described can be said to be “right” or “wrong” under any or all circumstances, but, in most civil cases in which parties are represented by counsel, some level of mediator preparation, including some form of pre-mediation communication with participants, is important in conducting a quality mediation. Many people believe that, at a bare minimum, mediators should carefully read all materials sent to them. Mediators should also think about the substantive issues and possibly have a plan from the outset. Mediators should talk with the lawyers in advance, addressing procedural matters, which might include who will (or will not) attend, whether to provide pre-mediation memos to the mediator, what (if any) additional information should be provided, deadlines for submission of pre-mediation materials, encouragement of a productive tone, and expectations about beginning and ending time of mediation. Lawyers also need to prepare for mediation by completing discovery. Lawyers should prepare clients before mediation, explaining the mediation process, the mediator’s role, and the clients’ role. Some counsel stated that one of the benefits of pre-mediation discussions with mediators is to prompt them (the lawyers) to prepare themselves and their clients for the mediation.

Case-by-Case Customization

Customization is the element of preparation that involves planning a mediation process tailored to the needs of the parties and the dispute. According to focus group participants, the timing of the mediation, exchange of information before the session, and whether to have opening statements, are all elements that can be customized to each dispute.

“Analytical” Techniques Used by the Mediator

Many reasonably sophisticated mediation users in civil cases want mediators to provide certain services, including analytical techniques. Users thought these listed activities would be helpful if employed by the mediator in their cases: ask pointed questions that raise issues; give analysis of case, including strengths and weaknesses; make prediction about likely court results; suggest possible ways to resolve issues; recommend a specific settlement; and, apply some pressure to accept a specific solution.

“Persistence” by the Mediator

Several different aspects of the issue of mediator “persistence” include trying to keep people at the table, trying to get the case settled by exerting some “pressure,” and trying to get people back to the table after a mediation session fails to settle the case. In the report, over 98% of the users thought persistence to be an important, very important or essential quality in a mediator. Users expressed dissatisfaction with mediators who threw in the towel when negotiations became difficult. They want mediators who are consistently engaged in the process and willing to work hard to help the parties settle their case.

The Final Report of the ABA Task Force can be found here – finalabataskforcemediation