Study Offers Insight on Effectiveness of Strategies
Abby Tolchinsky and Ellie Wertheim, New York Law Journal
December 9, 2015
In 2014, the Administrative Office of the Courts in Maryland issued a groundbreaking study of mediation. This study, “What Works in Child Access Mediation: Effectiveness of Various Mediation Strategies on Custody Cases and Parents’ Ability to Work Together,”1 considered the parties’ perspectives, before and after participating in the process. Simultaneously, the study also looked at the mediator’s manner of practice.
The breadth of the study—conducted using cases in Maryland Family Court in three counties—provides great insight into what mediator strategies and techniques are most (and least) effective for parties in various degrees and stages of conflict. Until now, there have been studies of the effects of mediation on parties,2 and studies of the work of the mediator in a “black box” manner. But never before had these two components been looked at to determine how the work of the mediator impacts the participants. This research is unprecedented; it both confirms and challenges what practitioners study, implement and anecdotally experience.
Below, we lay out a number of the findings of the study and how those may be incorporated into practice.
To Caucus or Not to Caucus. Last year, we wrote a column about whether—and under what circumstances—a mediator should meet with all the parties separately.3 As a matter of practice, it is our strong preference to meet with parties together. Over many years, we have landed squarely in this corner for several reasons.
Our academic grounding derives from the Center for Understanding in Conflict, where we have been taught the most fundamental value is enabling parties to listen to one another directly so that each party may be fully understood. Further, a goal of mediation is to put the information and authority in the hands of the parties rather than the mediator. Therefore, we aim to facilitate and to stay out of the way of the parties by declining to hold confidences or interpret each one’s perspective without the other having the benefit of hearing it, too.
This manner of practice, by no means universally accepted, is nonetheless affirmed by the Maryland study. However, and most strikingly, participants reported that, the greater the percentage of total mediation time spent in caucus, the more they felt respected and heard by the mediator and had confidence in the mediator’s neutrality.
Upon reflection, this result makes sense—each party had the ear of the mediator in privacy, and therefore felt the neutral’s full connection and attention. Good results, indeed. On the other hand—working on the assumption that mediation is a goal-oriented process—the greater the amount of time spent in caucus with the mediator, the lesser the ability of the parties to reach their goal of conflict resolution. More specifically, parties reported that their faith in their ability to solve the problems together decreased the more time they spent in separate conversations with the mediator. Moreover, confidence that a range of reasonable outcomes for resolving the issues at hand decreased.
This raises considerable concerns. While the connection with the mediator is always welcome, more important is the parties’ ability to work together to reach resolution by way of direct communication, to illuminate each party’s interests and goals around a given issue. And, when parties are able to listen to and understand one another’s perspective, ideally it follows that the range of acceptable outcomes expands.
Demonstrating Active Listening and Understanding. All mediators, regardless of core philosophy—whether actively directive, transformative, or law-driven—must employ the most basic communication methodology: reflecting what is said to demonstrate and confirm understanding, and reframing what is said to clarify and thereby move the conversation forward. Fundamentally, this is a mode of demonstrating true neutrality.
The mediator in this way is actively listening and reflecting where each party is, both emotionally and rationally, in relation to the conflict. The tremendous positive effect of this manner of communication is reflected in the Maryland study: Participants reported an increased confidence in their ability to resolve the conflict together and a willingness to consider a range of possible outcomes. Having heard the underlying importance through the neutral voice of the mediator, each party is less likely reflexively to dismiss suggestions or ideas of the other.
Another benefit is a more personalized approach, and therefore outcome, of tailored draft agreements that reflect the nuances elicited in mediation, rather than boilerplate drafting. A significant caveat to the above: Only when combined with problem-solving strategies, such as generating possible solutions from the parties, do the active listening strategies consistently yield agreement. It is not enough for a mediator to reflect, even in a skilled and compassionate manner; empowering the parties to problem solve their own conflict is a key component.
When Parties Buy In to Their Solutions. When parties come to mediation, we often tell them that—while we are there to work with them and bring some of our experience to bear in helping them to generate possible solutions—the best ideas come from them. The parties are the experts in their own lives, and the process, at its most pure, is driven by the autonomous decision-making of the parties. The mediator is merely a conduit of what has been learned from the parties and not a top-down expert exerting opinions or experience, however well-meaning. Rather than looming large in the room, the mediator, ideally, is a supportive, active participant in the process but not in the outcome.
In fact, the Maryland study confirms, “the greater percentage of strategies seeking solutions and reactions from participants that the mediator employed, the more likely the participant was to indicate that the other participants listened to them and increased understanding of them through the process…they themselves became clearer about their desires…they [were] more likely…to believe they could work together to resolve their conflicts with a range of options…and the more likely the case was to reach an agreement….” (Maryland Study, pp. 31-32).
The ‘Don’ts.’ Practice modes that were deemed unhelpful: the mediator sharing opinions about the situation, suggesting the agenda, advocating for either party’s perspective. These types of behaviors, while not directly harmful, showed no significant effect on the outcome of the case. However, when the mediators imposed behavioral guidelines or shared their opinion about best results, the participants experienced a lack of both respect and neutrality.
We are somewhat surprised by these particular findings, as in practice parties to mediation often express a wish for a measure of input based on the mediator’s experience with similarly situated parties. For example, it is not unusual for a divorcing couple to ask for suggestions of how to share parenting time or how to continue to co-own a marital residence. It is with great interest to learn that a mediator’s willingness to cross the line of participation does not hold greater weight and influence the final outcome. That said, mediators need to keep in mind that expressing strong opinions and seeking to influence outcome shifts the dynamic—a neutral and autonomous process is undercut and opportunities for communication and creative solutions by the parties are diminished.
Because mediation is an alternative to a traditional court process—not always well understood at the outset by the participants—we welcome the inference to be drawn from this study, that parties have an expectation of true neutrality and wish to resolve matters on their own. That is, they do not give the mediator’s input greater weight and they are not, ultimately, asking us to be arbitrators. In order to ensure parties and mediators have the same foundation of expectations and goals, it is important to begin every mediation with a process conversation—discussing how mediation works, and what are the ground rules, roles and obligations of the mediator and of the parties.
Using Experts. The study looked at the effect of participation in a parenting class prior to entering the mediation process. A positive result was recorded of more personalized agreements for those who attended classes than those who did not attend similar classes. Rather than boilerplate agreements, these personalized agreements reflect the thoughtful, detailed conversations between parents. However, parties attending parenting classes also reported that the mediation process did not facilitate them becoming clearer about their goals regarding how to parent together post-divorce.
The authors of the study speculate that due to the parties’ participation in the parenting class prior to entering the mediation process, they may have already considered the underlying issues to be negotiated. This leads us to contemplate the benefits of outside experts in general. Along with parenting experts, matrimonial attorneys and financial professionals are among the most commonly relied upon. In our experience, working with such a range of supportive, mediation-friendly experts, particularly at the outset of the mediation, facilitates informed, thoughtful and efficient decision-making. Perhaps, too, the expert input bolsters autonomy and the participants thereby rely less upon mediators to make suggestions, which in turn increases the experience of mediator as neutral.
2. See, e.g. Emery, R.E., Laumann-Billings, L., Waldron, M., Sbarra, D.A., and Dillon, P. “Child Custody Mediation and Litigation: Custody, Contact, and Co-parenting 12 Years After Initial Dispute Resolution,” Journal of Consulting and Clinical Psychology, 69, 323-332 (2001).
3. Abby Tolchinsky and Ellie Wertheim, “Do Separate Meetings Between Neutrals and Parties Help?” NYLJ Dec. 11, 2014.
Reprinted with permission from the New York Law Journal 2016 ALM Media Properties, LLC. All rights reserved.