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Mediator Actions Impact if a Case Settles

The American Bar Association released, “A Report of the Task Force on Research on Mediator Techniques.” The report concluded as follows:

“Overall Conclusions. Looking at the relative potential for positive versus negative effects, while bearing in mind the substantial likelihood of no effects, the following mediator actions appear to have a greater potential for positive effects than negative effects on both settlement and related outcomes and disputants’ relationships and perceptions of mediation: (1) eliciting disputants’ suggestions or solutions; (2) giving more attention to disputants’ emotions, relationship, and sources of conflict; (3) working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda; and (4) using pre-mediation caucuses focused on establishing trust. Some of these actions, however, have been examined in a relatively small number of studies and in only a subset of dispute types, primarily divorce, limited jurisdiction, community, and labor disputes.”

I fully agree with these conclusions. I find it essential to settlement that I help parties find solutions, acknowledge parties’ emotions, build trust with each party, and sparingly use private sessions. Attorneys call me a “closer” because I get parties to settlement… a settlement the parties can live with and not regret. Too many mediators focus on reaching settlement and forget to focus on the path to reach settlement. By neglecting the path, the likelihood of settlement becomes less likely. I find that if I trust the path, the settlement will naturally occur.