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2000 J. Disp. Resol. 41 (2000)
Variations in Mediation: How - and Why - Legal Mediators Change Styles in the Course of a Case

handle is hein.journals/jdisres2000 and id is 47 raw text is: Variations in Mediation: How-and Why--Legal Mediators Change Styles in the Course of a Case Dwight Golann If the use of alternative dispute resolution is to grow, then dispute resolution techniques must continue to improve. This is true for several reasons: First, those who believe in these processes have a natural interest in their advancement. In addition, after a quarter century of publicity and discussion of ADR in American legal circles, many of those most receptive to these techniques are already using them. To convert the skeptics will require that ADR methods become more effective, or at least that their present effectiveness be more persuasively demonstrated. Lawyers also increasingly attempt to spin neutrals to adversarial ends,' requiring a more sophisticated response by mediators. Finally, if society increases its support for court-related ADR,2 those who design and fund these processes, and especially jurisdictions that require litigants to use them, 3 have a natural stake in their being delivered effectively. Curiously, although there has been debate over the appropriateness of various ADR techniques,4 there has been relatively little inquiry--at least by legal scholars --into how these processes actually unfold5 in the general field of American civil * Professor of Law, Suffolk University Law School. B.A., Amherst College, J.D. Harvard Law School. I wish to thank Marjorie Corman Aaron, who conceived and initiated the filming project that serves as the basis for this article, and the Program on Negotiation at Harvard Law School which supported it. Special thanks are also due to the mediators who graciously agreed to demonstrate their techniques on film: Abraham Gafni, David Geronemus, David Hoffman, James McGuire, Carmin Reiss, Kathleen Roberts and Margaret Shaw. 1. See, e.g., David Stem, Mediation: An Old Dog With Some New Tricks, 24 LMG. 31 (1998) (analyzing how mediation can be used as part of a larger litigation strategy). 2. These issues arise, for example, under Professor Sander's concept of a comprehensive justice center. Frank E.A. Sander, The Future of ADR. 2000 J. Disp. RESOL. 3, 5-6 (2000). 3. Professor Sander endorses the concept of requiring disputants at least to sample mediation. Id. at 7-8. Others have called attention to the special policy concerns that arise when the state requires disputants to engage in a specific form of ADR. Jeffrey W. Stempel, Beyond Formalism and False Dichotomies: The Need for Institutionalizing a Flexible Concept of the Mediator's Role, 24 FLA. ST. U. L. REV. 949,953-54, 971 (1997). 4. For example, in STEPHEN B. GOLDBERG ET AL., DISPUTE RESOLUTION 134-64 (1999), the authors present a story of a legal mediation interspersed with contrasting views of academics concerning the techniques proper to use in such a process. 5. Recent empirical studies of legal mediation have focused primarily on outcomes: settlement rates, cost savings and user satisfaction. See JAMES S. KAKALIK ET AL., AN EVALUATION OF MEDIATION AND EARLY NEUTRAL EVALUATION UNDER THE CIVIL JUSTICE REFORM ACT (1996); Jeanne M. Brett et al., The Effectiveness of Mediation: An Independent Analysis of Cases Handled by Four Major Service Providers, 12 NEGOTIATION J. 259 (1996); Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Courts, 33 WILLAMETrE L. REV. 565, 579 (1997). The leading compilation of research into what occurs during the mediation process is KENNETH KRESSEL ET AL., MEDIATION RESEARCH: THE PROCESS AND EFFECTIVENESS OF THIRD-PARTY INTERVENTION (1989).

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