Changing Minds: The Work of Mediators and Empirical Studies of Persuasion

92 Pages Posted: 27 Feb 2011 Last revised: 9 May 2013

James H. Stark

University of Connecticut - School of Law

Douglas N. Frenkel

University of Pennsylvania Law School

Date Written: 2013

Abstract

The use of mediation has grown exponentially in recent years in courts, agencies, and community settings. Yet the field of mediation still operates to a considerable extent on folklore and opinion, rather than reliable knowledge. Mediator attempts at persuasion are pervasive in a wide variety of mediation contexts, yet "persuasion" is, for some, a pejorative word and a contested norm in the field. Perhaps as a result, there has been little, if any, evidence-based writing about what kinds of persuasive appeals might be effective in mediation, how they might operate, and how they might be experienced by disputants.

In an effort to begin to fill that void, this article examines empirical research findings on persuasion from such diverse fields as advertising, public health, communications, politics and race relations. It focuses on studies of both indirect or behavioral approaches to persuasion (role reversal, apology, group brainstorming) and different types of direct persuasive appeals (questions vs. statements, more vs. less explicit statements, use of "negative" emotions such as fear and guilt, and sequential vs. straightforward requests for concessions). As almost none of the empirical work on persuasion has involved dispute resolution, the article raises questions about how these social science findings might apply to the work of mediators.

Some of the research findings described in this article are unsurprising, while others may challenge common assumptions. Where the research appears at odds with conventional mediation wisdom, the authors discuss its potential implications for ongoing philosophical and skills-based debates in the field. Of particular note, the literature canvassed in this article may cast new light on old debates about facilitative versus evaluative mediation, and the importance of mediators having substantive, as well as process, expertise.

Keywords: Alternative dispute resolution, mediation, ADR, persuasion by mediator, cross-disciplinary empirical research findings, facilitative versus evaluative mediation, substantive expertise of mediators

Suggested Citation

Stark, James H. and Frenkel, Douglas N., Changing Minds: The Work of Mediators and Empirical Studies of Persuasion (2013). Ohio State Journal on Dispute Resolution, Vol. 28, No. 2, Pg. 263, 2013; U of Penn Law School, Public Law Research Paper No. 11-07. Available at SSRN: https://ssrn.com/abstract=1769167 or http://dx.doi.org/10.2139/ssrn.1769167

James H. Stark

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

Douglas N. Frenkel (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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