Improving Mediation Quality: You, Too, Can Do This in Your Area

There are many reasons mediators want to improve the quality of practice in their geographic or subject area. Most mediators have a strong sense of professionalism and sincerely want to help people in conflict. When parties and lawyers are in a difficult dispute, sometimes the only way they can get out of that jam is through skillful mediation. So many lawyers and parties have come to really appreciate the process.

Moreover, if parties, lawyers, judges, and observers are satisfied with mediation, the overall volume of mediation practice is likely to grow. Thus mediators have a shared interestin providing the best possible quality of mediation service in all cases.

To help achieve these goals, the ABA Section of Dispute Resolution created a Task Force on Improving Mediation Quality, which recently issued a report describing its two-year research project. See “ABA Task Force Releases Mediation Recommendations—And Calls for More Research,” 26 Alternatives 79 (April 2008).

The task force focused only on private practice civil cases—such as commercial, tort, employment, and construction cases, but not family law or community disputes—where the parties are represented by counsel in mediation. The task force studied the views of lawyers, parties, and mediators by using focus groups, surveys, and interviews. It held focus groups and conducted surveys in nine cities across the United States and Canada (including one set of focus groups organized by Alternatives’ publisher, the CPR Institute, in New York in January 2007; Alternatives publisher Kathy Bryan was a task force member.)

The task force findings focused on the following four aspects of mediation that the research subjects said are particularly important: (1) preparation for mediation by mediators and mediation participants, (2) case-by-case customization of the mediation process, (3) careful consideration of any “analytical” assistance that mediators might provide, and (4) mediators’ persistence and patience. The task force has set up a web page containing the full report at www.abanet.org/dch/committee.cfm?com=DR020600.

The task force also published a “Tool Kit for Improving the Quality of Mediation in Your Geographic or Practice Area,” which describes how regional or specialty practice groups can conduct similar projects. It provides suggestions based on the task force’s experience. The tool kit is posted on the website, along with sample documents. This article highlights key points from the tool kit.

CONVENING STAKEHOLDERS, ESTABLISHING GOALS

The first step in investigating local improvements involves convening a group of stakeholders to serve as the project planning committee. The choice of stakeholders depends on factors such as the types of cases involved (e.g., general civil cases or a specific type of dispute), geographic location (e.g., nation, state, region, or locality), and any particular concerns that prompted the project’s initiation (for example, perceived problems or needs).

The planning committee might include mediators, lawyers, judges, court administrators, and representatives of bar associations and dispute resolution organizations. Considering that mediators have varying mediation philosophies, the committee might include mediators with different perspectives. Organizers may invite representatives from other fields as appropriate.

For example, a construction mediation project might include architects and contractors; a family mediation project might include mental health professionals. Mediation parties often have distinctly different perspectives from the professionals, so it is particularly important to elicit the parties’ perspectives as much as possible. If appropriate, organizers might enlist repeatusers to serve on the planning committee.

At the outset of the process, the planning committee should discuss the project’s goals. Presumably, the general goal would be to improve the quality of mediation within the project’s scope. The committee should discuss possible additional possible goals for mediation, such as increasing the levels of

Mediation parties often have distinctly different perspectives from the professionals,

so it is particularly important to elicit the parties’ perspectives as much as possible.

  • satisfaction of parties’ substantive interests,
  • substantive and procedural fairness,
  • resolution of disputes, including efficiency in the process,
  • parties’ capabilities in handling other disputes, and
  • quality of parties’ relationships.

 

After the committee decides on its goals, it should consider the kinds of “products” it might develop. Examples of such products include educational materials, training programs for mediators or advocates, dispute referral mechanisms, mediator peer consultation and mentoring programs to improve professionals’ skills, specialized ethical guidelines, court rules about mediation, credentialing projects, and initiatives to educate disputants and the public about mediation.

The planning committee should consider what information it needs to be most effeceffective in its quality improvement project. Each committee should tailor its process for getting information to fit its goals and circumstances. Collecting information can be time-consuming, so the committee should consider how much time and effort it can invest in the project, and weigh the value of collecting its own data or using data collected previously by others.

The ABA task force report includes an extensive bibliography, with some Internet resources, so the committee should begin by learning about previous work in this area.

A committee deciding to collect its own data should plan the process realistically. To help plan such efforts, the task force website includes sample focus group protocols, surveys, and related documents as well as memos with advice about conducting research and drafting surveys.

A committee may want to adapt the task force’s process, which was particularly focused on getting mediation users’ perspectives. It used focus groups, written surveys, and personal interviews to collect data from lawyers and parties as well as mediators. It started with focus groups that asked general questions about good and bad mediation techniques.

After analyzing the patterns of responses in the initial focus groups, the task force refined its questions to focus on specific issues, such as desirable qualities in selecting mediators, procedures in preparing for mediation sessions, and attitudes about various types of analytical assistance that mediators can provide. It also developed standardized surveys to get quantitative measures of people’s views.

A committee should consider common challenges in collecting data—and be very cautious in interpreting it. The results can be strongly affected by the questions’ wording and the sample of people selected to participate in a study.

For example, it often is difficult to collect data from parties who have attended mediation only once. Their views may be quite different from repeat users.

Ideally, researchers would use random samples to get representative results, though often this isn’t practical. The results from non-random samples may not be accurate indicators of the relevant population’s view, to some degree, and thus should be interpreted cautiously.

Research can help mediation stakeholders decide what actions to take. But it is not an end in itself in quality-improvement projects. Research can help inform decision-making but it should not be considered a substitute for thoughtful decision-making.

Even if a majority of subjects hold a certain view, if a significant minority believes otherwise, mediators and policymakers should not assume that everyone should follow the majority view.

For example, the ABA task force found that a majority of the lawyers it surveyed frequently want mediators to recommend a specific settlement and apply pressure to accept a specific solution. Such a finding should not necessarily drive the conclusions of the project—and, in this context, the task force expressly declined to make a recommendation about whether mediators should use these techniques.

Indeed, the goal of research may be to conduct a systematic brainstorming process that identifies creative ideas or test reactions to some ideas rather than to precisely estimate the frequency of various views.

After a committee collects its information, it should review its goals and consider what steps would be most effective in achieving them.

* * *

Just as mediation in individual cases should be tailored to the circumstances of the cases, the mediation process in particular geographic or practice areas should be tailored to the circumstances in those areas. Quality-improvement initiatives can be part of a more general dispute system design process for mediation programs and practice areas to improve mediators’ practice choices. The Task Force Tool Kit is a valuable guide to help mediation stakeholders improve the quality of mediation in their area.

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The author is associate professor and director of the LL.M. Program in Dispute Resolution at the University of Missouri School of Law. He was a member of the ABA Section of Dispute Resolution Task Force on Improving Mediation Quality and he took the lead in designing and analyzing the Task Force’s research.

Reprinted from INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 26 NO. 5 MAY 2008 with the permission of the author.

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