Commentary: Focusing on program design issues in future research on court‐connected mediation

Abstract

C ourt-connected mediation often works very well. That is a fair conclusion based on evidence summarized in Roselle Wissler's meticulous review of court-connected mediation. Analyzing studies of small claims, general civil, and appellate mediation programs, her review suggests that mediation is usually evaluated very favorably and is rated as highly as or better than the alternatives on virtually all outcome indicators. 1 In other words, almost all of these studies find that the results are either better in mediation or that there are no significant differences.This suggests that mediation has the potential to be quite effective in producing various desired results and that whether a mediation program actually generates such results depends on how well it is designed and fits with the local practice culture. Mediation is a highly variable process that program designers and users can readily adapt. As McEwen (1988) suggests, instead of "asking whether mediation works or not, we need to examine how and why parties and lawyers 'work' mediation in varying ways" (p. 3). 2 McEwen's suggestion can be extended to analyze how mediators and program designers "work" mediation processes. Thus, this article analyzes prior research to determine why some mediation programs did not outperform traditional litigation while others did. 3 It illustrates how researchers and program designers might analyze past research findings, design programs to produce desired results, and then empirically test the effectiveness of such design efforts. 4 This article also suggests that researchers increase the use of outcome measures in addition to traditional measures of efficiency, satisfaction, and perceived fairness. These include substantive justice, empowerment and recognition, and interest-based problem solving. Given intense concerns about mediator evaluation and party self-determination, researchers should also examine these issues further.

A crack in the foundation? Revisiting ECR's voluntary tenet

“…SPIDR guidelines emphasize that "a fair mediation program allows disputants to make informed and voluntary decisions about whether and on what terms to resolve their dispute" (1998, p. 5). If a process is perceived to be fair, parties engage in it with confidence that they will be treated fairly; their interests will be heard and acted on (Lande, 2004;Smith and McDonough, 2001). They are not going to be coerced or co-opted into agreements that are not in their best interests (Fisher, Ury, and Patton, 1991;Goldberg, Green, and Sander, 1986;Susskind and Cruikshank, 1987).…”

“…Bingham was concerned that "accomplishing the intended goals without losing the flexibility that is the basic strength of voluntary dispute resolution processes will be a challenge" (1986, p. 149). Though lacking in the ECR context, examination of the concerns associated with mandated or compulsory ADR processes in the legal context, and involving small claims or general civil as opposed to environmental or other public disputes, is extensive (see, for example, Golann, 1989;Hedeen, 2005;Katz, 1993;Kirmayer and Wessel, 2004;Lande, 2004;Munro, 1999;Nelle, 1992;Smith, 1998;SPIDR, 1991;Winston, 1996;Wissler, 2002). As Hedeen commented:…”

“…In theory, a party can always exit a process if they feel their interests are not being met or they are being disadvantaged in some way. Party self-determination and the role of the mediator in ensuring this self-determination is deemed paramount (Hedeen, 2005;Lande, 2004). Consequently, some have suggested that mandatory mediation is a contradiction in terms or, as Sander (2000, p. 7) put it, an "oxymoron .…”

The institutionalization of mediation

“…− Civil mediation (Wissler 2002, Lande 2004, Charkoudian 2016a, 2016b; − Environmental (Emerson et al 2004, Dukes 2004).…”

What works in alternative dispute resolution? The impact of third‐party neutral strategies in small claims cases

“…To address definitional inconsistencies and the disconnect between ADR theory and practice, scholars recommend focusing on the specific ADR interventions that maximize benefits (Herrman, Hollett, & Gale, 2006;Lande, 2004;Wissler, 2002). This study answers that call, moving away from testing of a particular ADR framework or "style," and isolating the impact of various strategies used by neutrals across many different frameworks.…”