Do Mediators Walk Their Talk in Civil Cases?

Abstract

In this article we examine initial joint sessions in civil case mediations and note that, although understudied, they are a key element in the mediation process. Here mediators can set the tone of the mediation by delineating the goals, proffering advice to the disputants, and relating their experiences. They can indicate which strategy or style they will subsequently use. To investigate these aspects, we observed one hundred civil case mediations and found that mediators in the opening joint sessions typically did provide goals, advice, and descriptions. In about one-half of the mediations, the mediators stated which style — neutral, evaluative, or pressing — they would use. Observations of the subsequent mediations revealed that mediators who said they would employ a neutral style seldom did so, whereas the mediators who said they would evaluate or press were more apt to follow their espoused strategy. An examination of the agreements in the mediations revealed that the evaluative strategy was most often associated with agreement, the pressing style was a close second, and the neutral style was a distant third. Moreover, it was noted that the evaluative and pressing mediators who walked their talk — who employed the strategy they said they would use — were effective in getting agreements. In contrast, the lowest number of agreements came when mediators initially stated they would use an evaluative strategy but subsequently pressed the disputants.