What Consumers Of ADR Want From Their Mediators
Concluding my original report on the highlights of the ABA Section of Dispute Resolution Spring Conference in Seattle, I attended several break out sessions which focused on what consumers of ADR services really want from their neutrals. One of these was a presentation on the Findings on Mediation Quality from the ABA Section of Dispute Resolution Task Force on Improving the Quality of Mediation (H7), given by four members of that Task Force (Kathleen A. Bryan, Leila Taaffe, Wayne Thorpe and Rachel Wohl).
The entire Report is worth reading - both for mediators and those who use mediators - but the panel focused on the key findings about what consumers of mediation really want and view as "high quality" in mediation:
- Preparation. The panel emphasized that this included not only that the mediator review and understand the available materials, but that the mediator do whatever is possible to assure that counsel and the parties are prepared as well - that is, that everyone starts "on the same page."
- Customization of the mediation process. The panel mentioned the importance of pre-mediation communication with counsel to determine what they expect, and what they believe will be useful in the process - for example, whether the parties will benefit from joint sessions and opening statements. Logistical matters involving time, length and scope of sessions, as well as presence and participation of parties were also seen as important items for the mediator to nail down.
- Analytical assistance from the mediator. The parties and counsel want the mediator to help resolve the case by fairly assisting them to analyze how their case will be viewed by a judge or jury, but, according to the panel, they don't want their mediator to tell them "this is what will happen." They also value creative suggestions, and welcome the mediator's perspective when based on subject matter expertise.
- Persistence by the mediator. Counsel surveyed for the Report consistently valued and gave high marks for a mediator's persistence - having a manifest commitment to getting the conflict resolved at all stages of the mediation. The panel noted the importance of mediator follow-up, whether the mediation resulted in settlement or not.
[Image: Pike Place Market (Seattle) greengrocer vegetable display, by Rootology, 5-30-08]
Dear Richard:
I just read your well written and informative Article in the insert included in the June edition of the New Jersey Lawyer. It was well written and very informative.
There is one circumstance that you might want to consider mentioning, by way of expansion of item 9. Patient Relations, or by expansion into its own item due to its extreme importance. This would be disputes that involve change in a person's circumstances while in an Assisted Living arrangement.
I came across this in my capacity as Regional Vice President for the American Arbitation Association some ten years ago or so. The concept and usage of Assisted Living has only increased moreso in the years since. In an Assisted Living arrangement, the "patient" might undergo changes in health, requiring the person to either leave the facility if no other alternative levels of care are provided. Or, the "patient" might have to change to a higher level of care - e.g., from living on one's own to required nuring care; or even to a higher level that would be similar to almost intensive care. The decision to change the level - which is ultimately a life style change - is ususally made by the facility in consultation with its medical team. And while usually agreed to, can be resisted by the "patient" both in terms of not agreeing with the medical determination, nor the life style change, nor the financial consequences from such a change which can be extreme.
I had been called into a facility to discuss and help put in place the ADR mechanism, and some suggested contractual language that would best describe such mechanism, to allow for such possible disputes. The goal being, as you so well described, to allow for the true relationship between the parties to continue even though the dispute was of severe significance.
I can only imagine that this need for an ADR mechanism has grown over time.
Again, good Article. Just some thoughts.