What Happens Before the First Mediation Session? An Empirical Study of Pre-Session Communications

Abstract

Mediator, lawyer, and party preparation in advance of the first formal mediation session is widely seen as important for the effectiveness of the mediation. Communications between the mediator and the mediation participants before the first mediation session, along with the submission of case information and documents to the mediator, are two primary means of information exchange to aid preparation. Few studies have looked at what occurs during these early stages, despite their centrality to mediation. The present Article reports the findings of a study of more than 1,000 mediators in different mediation settings and dispute types across eight states that begins to fill the gaps in our empirical knowledge of what happens before the first formal mediation session. The study examines whether and when pre-session communications take place, the case information that the mediators have access to before the first mediation session, the factors that are related to pre-session communications and document submissions, whether the disputants themselves are present and how much they speak, and the specific process and substantive issues that are discussed.

The findings suggest that current practices contravene conventional mediation advice and negatively impact the ability of mediators, lawyers, and disputants to prepare for the first mediation session and to customize the mediation process to the needs of the individual case. Moreover, blanket assertions cannot be made about what “typically” occurs before the first mediation session, as what takes place varies between civil and family cases, by the case referral source, and by whether the parties do or do not have counsel, among other factors. The present Article helps lay the groundwork for future empirical research that can deepen our understanding of how mediators and mediation participants can most effectively use pre-session communications and document submissions to prepare for mediation and enhance the quality of the mediation process and its outcomes.

Keywords: mediation, empirical research, mediator