RETHINKING THE RELATIONSHIP BETWEEN MEDIATOR PRESSURE AND
PARTY SELF-DETERMINATION
TABLE OF CONTENTS
I.
INTRODUCTION.........................................................................................................................1
II. THRESHOLD QUESTION: IS MEDIATOR PRESSURE EVER APPROPRIATE?............................2
III. PRESSURE INPUTS..................................................................................................................4
A.
B.
Topics.........................................................................................................................5
1.
Low-pressure topics.........................................................................................5
2.
Medium-pressure topics...................................................................................6
3.
High-pressure topics........................................................................................7
Tactics.........................................................................................................................8
1.
Low-pressure tactic: Asking questions............................................................8
2.
Medium-pressure tactic: Making suggestions.................................................9
3.
High-pressure tactic: Giving opinions...........................................................10
IV. PRESSURE VALVES...............................................................................................................11
V.
A.
Parties’ Motivations................................................................................................11
B.
Parties’ Relationships with Others........................................................................12
C.
Attorneys’ Motivations...........................................................................................13
D.
Parties’ Relationship with the Mediator...............................................................14
E.
Timing......................................................................................................................15
PRESSURE GAUGES................................................................................................................15
VI. CONCLUSION........................................................................................................................17
ii
I.
INTRODUCTION
Party self-determination is a “fundamental principle of mediation.”1
Mediators are
expected to conduct each mediation based on this principle,2 thus ensuring “a voluntary, uncoerced
decision in which each party makes free and informed choices as to process and outcome.” 3 At
the same time, however, mediators regularly conduct mediation with the goal of settling the case,4
and indeed, parties expect mediators to work hard to achieve this goal.5 As a result, mediators
often (although perhaps not consciously) apply some degree of pressure on the parties in
mediation.6
Mediator pressure may seem to violate the principle of party self-determination, but David
Matz argues that these two opposing forces can coexist and that mediator pressure may, in some
cases, actually encourage the free expression of a party’s will. 7 Matz concludes, however, that
“almost no clear rules can be drawn about mediator pressure,”8 because the “problem is not one
well suited to simple line drawing or name calling.”9
Recognizing the impossibility of drawing clear rules, this paper instead attempts to sketch
a rough picture of how mediators apply pressure, what determines whether pressure is appropriate,
1
ABA SECTION OF DISPUTE RESOLUTION, DISPUTE RESOLUTION ETHICS: A COMPREHENSIVE GUIDE 73 (Phyllis
Bernard & Bryant Garth eds., 2002).
2
MODEL STANDARDS OF CONDUCT FOR MEDIATORS Standard I (2005) [hereinafter MODEL STANDARDS FOR
MEDIATORS], available at
http://www.americanbar.org/content/dam/aba/migrated/dispute/documents/model_standards_conduct_april2007.aut
hcheckdam.pdf.
3
Id.
4
ABA SECTION OF DISPUTE RESOLUTION TASK FORCE ON IMPROVING MEDIATION QUALITY, FINAL REPORT 7
(2008) [hereinafter ABA TASK FORCE], available at
http://www.americanbar.org/content/dam/aba/migrated/dispute/documents/FinalTaskForceMediation.authcheckdam.
pdf (“92% of the mediators surveyed indicated that in about half or more of their cases their goal is to settle the
case.”).
5
Id. at 17 (Users “want mediators who are . . . willing to work hard to help the parties meet their needs and settle
their case.”).
6
See David E. Matz, Mediator Pressure and Party Autonomy: Are They Consistent with Each Other?, 10 NEGOT. J.
359, 360 (observing that “almost all mediators apply pressure on the parties with whom they work”).
7
Id. at 362.
8
Id. at 364.
9
Id. at 365.
1
and how to tell when too much pressure has been applied. The paper proceeds as follows: Part II
addresses the threshold question of whether mediator pressure is ever appropriate. Part III
discusses the effects of various “pressure inputs”—ways in which a mediator might apply pressure.
Part IV examines the role of “pressure valves”—situational characteristics that mitigate the
negative effects of mediator pressure. Part V briefly discusses “pressure gauges”—signs that
mediator pressure has gone too far. Part VI concludes.
II. THRESHOLD QUESTION: IS MEDIATOR PRESSURE EVER APPROPRIATE?
Some mediators disapprove of all forms of mediator pressure. Robert Mnookin reflected,
“When I serve as a mediator I don’t like to think of myself as ever putting pressure on the party.
Instead my goal is to help them think through clearly in terms of their own underlying interests
whether various options generated in the mediation serve them better than their BATNA [Best
Alternative to a Negotiated Agreement].”10 Lawrence Susskind voiced a similar concern: “I don’t
think the metaphor of ‘putting pressure’ is the right way to frame it. I think the mediator has
certain responsibilities, but these should (in my view) take the form of asking certain questions
and offering capacity building assistance (to all sides).”11 Mediators who strive to avoid all forms
of mediator pressure might label their approach “facilitative” rather than “evaluative,” to borrow
Leonard Riskin’s distinction.12
Categorical disapproval of mediator pressure, however, seems to overlook two wellestablished facts about mediation. The first is that participants often want the mediator to apply
pressure. According to the ABA Task Force on Improving Mediation Quality, 82% of mediation
10
E-mail from Robert Mnookin, Law Professor, Harvard Law School, to author (Dec. 8, 2013) (on file with author).
E-mail from Lawrence Susskind, Professor, MIT, to author (Dec. 8, 2013) (on file with author).
12
See Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies and Techniques: A Grid for the
Perplexed, 1 HARV. NEGOT. L. REV. 7, 25 (1996).
11
2
users in the study’s focus groups thought “‘exerting some pressure’ was an important trait, very
important or essential for a mediator to be effective.”13 Participants might invite mediator pressure
for any number of reasons. Some parties come to a mediator because they are “stuck” in their
dispute, and they hope that the mediator will help them get “unstuck.”14 Other parties may seek
mediator pressure because it gives them greater latitude to accept settlements beyond their “bottom
line.”15 Some attorneys seek a mediator’s help in providing “reality checks” to their clients who
have developed unrealistic expectations of a case’s value or likelihood of success. 16 At the very
least, most participants attend mediation to settle their case in a way that minimizes time, cost, and
risk.17
The second fact is that mediators—even those who favor a broad, “facilitative” approach—
frequently use “evaluative” techniques.18 Scholars have pointed out that the facilitative/evaluative
dichotomy is more accurately viewed as a continuum, along which mediators move and adjust
their style throughout a mediation.19 Thus it is entirely possible that mediators apply pressure
“more often or more subtly than they realize.”20
13
ABA TASK FORCE, supra note 4, at 17.
Matz, supra note 6, at 360.
15
Timothy Hedeen, Coercion and Self-Determination in Court-Connected Mediation: All Mediations Are
Voluntary, But Some Are More Voluntary than Others, 26 JUST. SYS. J. 273, 285 (2005). Hedeen speculates that
parties under mediator pressure may feel free from “the full responsibility” of an otherwise undesirable settlement
offer. Id.
16
See id.
17
ABA TASK FORCE, supra note 4, at 7 (finding that 88% of focus group users indicated that their goal in at least
half of their cases was to settle, and that 85% indicated that their goal in at least half of their cases was to minimize
time, cost, and risk).
18
Dwight Golann, Variations in Mediation: How—and Why—Legal Mediators Change Styles in the Course of a
Case, 2000 J. DISP. RESOL. 41, 42 (2000).
19
See, e.g., Jane Kidner, The Limits of Mediator “Labels”: False Debate Between “Facilitative” Versus
“Evaluative” Mediator Styles, 30 WINDSOR REV. LEGAL & SOCIAL ISSUES 167, 167 (2011). Notably, Leonard
Riskin originally referred to his concept as the “facilitative-evaluative continuum,” Riskin, supra note 12, at 24, and
he clarified that many mediators move along this continuum, id. at 24–25.
20
ABA TASK FORCE, supra note 4, at 16.
14
3
In light of the facts that participants frequently want—and mediators regular apply—
pressure, it seems that those who criticize all forms of mediator pressure embrace an unusually
narrow definition of the word “pressure.” This paper, on the other hand, uses the word “pressure”
to encompass “all the factors which tend to make one or both parties reconsider.”21 Accordingly,
“pressure” is not equivalent to “coercion.”22 To “pressure” could mean either to “persuade” or to
“coerce,” depending on the context.23
Under this broader definition, the relevant question is not whether mediator pressure is ever
appropriate, but when such pressure is appropriate. Kenneth Cloke articulates the question this
way: “When does pressure become unethical and defeat the real purpose of mediation, which, as
I see it, is not to force people into concessions they believe are wrong, but to create choices that
did not exist beforehand, to help them see their dispute as a place of learning, an opportunity to
find better solutions, a chance for healing, a source of new skills, and a crossroads that can help
them evolve and become better human beings.”24 The fear underlying the question is that a
mediator might apply too much pressure and violate party self-determination.25
III. PRESSURE INPUTS
“Pressure inputs” are ways in which mediators may apply pressure to parties. Parties often
enter mediation with a set of beliefs that have not been critically examined. David Matz refers to
this set of beliefs as the party’s “worldview”: interlinked expectations about the party’s
21
Hugh G. Lovell, The Pressure Lever in Mediation, 6 INDUS. & LAB. REL. REV. 20, 22 (1952).
ABA TASK FORCE, supra note 4, at 18.
23
Definition of “Pressure” as a Verb, OXFORD ENGLISH DICTIONARY ONLINE,
http://www.oed.com/view/Entry/150824?rskey=BxkDUA&result=3#eid (last visited Dec. 19, 2013).
24
E-mail from Kenneth Cloke, Director, Ctr. for Dispute Resolution, to author (Dec. 9, 2013) (on file with author).
25
Matz, supra note 6, at 399. This is not the only fear, however. For other reasons to avoid mediator pressure, see
Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 FLA. ST. U. L. REV. 937, 937 (1997).
22
4
relationships and sense of the future.26 One of the mediator’s goals is to help the parties reconsider
these pre-set beliefs,27 which can be accomplished through mediator pressure. The amount of
pressure being applied depends on the belief that the party is being asked to reconsider and the
manner in which the party is being asked to reconsider. To put it more succinctly, mediator
pressure varies by “topic”—what the pressure is directed toward—and “tactic”—how the pressure
is communicated. Mediators thus select “pressure inputs” by choosing which topics to discuss and
which communicative tactics to employ.
A.
Topics
In general, the more firmly a party holds a belief, the more pressure will be applied in
asking the party to reconsider that belief. Thus, “high-pressure” topics of conversation tend to
involve a party’s firmly held beliefs, whereas “low-pressure” topics of conversation do not.
1.
Low-pressure topics
A common low-pressure topic is mediation procedure.28 For example, if an inexperienced
party expects to remain in joint caucus throughout the mediation, she might be surprised when the
mediator asks to meet with the other party privately, but she will not feel unduly “pressured” by
the mediator’s action. It is only a procedural matter, and the party will probably simply readjust
her expectations.29
26
Telephone Interview with David Matz, Professor, University of Massachusetts Boston (Dec. 12, 2013).
Telephone Interview with Margaret Shaw, Lawyer and Mediator, JAMS (Dec. 10, 2013).
28
According to Standard I of the MODEL STANDARDS FOR MEDIATORS, supra note 2, “a mediator may need to
balance such party self-determination with a mediator’s duty to conduct a quality process.” This implies that a
mediator’s procedural decisions are consistent with party self-determination.
29
Relatedly, the topic of “what to discuss next” frequently arises in mediation, and parties do not typically feel
pressured by a mediator who guides the discussion. Cf. Matz, supra note 6, at 361–62 (discussing three hypothetical
examples of a mediator “refocusing a party’s attention”).
27
5
Another relatively low-pressure topic is whether to continue mediating in the face of
difficulty.30 Over the course of mediation, emotions might flare and harsh words might fly, but
parties normally will not feel intensely “pressured” by a mediator who calmly and dutifully
advocates that the parties keep striving toward agreement during the allotted mediation time.31
Brainstorming creative solutions is also a low-pressure topic.32 Although parties often
enter mediation with expectations regarding acceptable settlement terms, they generally welcome
the opportunity to think about other options and do not feel “pressured” when considering new
ideas.33
Inquiry into parties’ interests is another low-pressure topic into which effective mediators
delve. Ideally, both the mediator and the party should be aware of the party’s fundamental goals,
as this will increase the likelihood that someone will think of a creative way to reach those goals.34
2.
Medium-pressure topics
The strengths and weaknesses of a party’s case are a common medium-pressure topic.35
Parties enter mediation believing (or at least pretending to believe) in the strength of their position
relative to that of the other side. Accordingly, any critical analysis of either side’s case may
involve pressuring the parties to reconsider one of their significant beliefs.36
See ABA TASK FORCE, supra note 4, at 17 (finding that “98% of the users thought persistence to be an important,
very important or essential quality in a mediator” and that “[u]sers expressed dissatisfaction with mediators who
threw in the towel when negotiations became difficult”).
31
Occasionally, however, perseverance can be a high-pressure topic. See Hedeen, supra note 15, at 280 (referring to
case where 65-year-old plaintiff suffering from high blood pressure, headaches, and intestinal pains allegedly
endured fifteen-hour session and mediator “bullying”).
32
See ABA TASK FORCE, supra note 4, at 14 (finding that 100% of users thought it would be helpful in at least half
of their cases to discuss “possible ways to resolve issues”).
33
See Michael J. Leech, How Did You Do That? Trade Secrets of a Mediator, 18 CBA REC. 37, 41 (2004)
(advocating the exploration of “overlooked options,” including collaborative solutions and compromises).
34
Telephone Interview with David Matz, supra note 26.
35
See ABA TASK FORCE, supra note 4, at 14 (finding that 95% of users thought it would be helpful in at least half of
their cases to discuss “strengths and weaknesses” of their case).
36
Note, however, that “[m]ediator discussion and analysis of legal and factual issues” does not necessarily involve
“articulating conclusions and opinions.” Id. at 15. This distinction matters, because discussion of the mediator’s
opinions often generates high pressure.
30
6
Another medium-pressure topic is whether to settle at all.37 At the beginning of mediation,
parties typically regard the prospect of settlement with significant suspicion.38 Thus, a mediator’s
discussion of whether to settle would likely pressure parties to reconsider a fairly firm belief.39
This risk of over-pressure is heightened by the fact that mediators may be incentivized to boost
their own settlement rates at the expense of parties’ interests.40
The parties’ own perceptions of fairness is also a medium-pressure topic. In almost every
mediation, one side views an action by the other as unfair. In exploring the topic of fairness, the
mediator risks inadvertently revealing his own views, throwing fuel on an already raging fire, and
intruding on parties’ privacy.41 Nevertheless, “mere talk about fairness does not necessarily create
undue mediator influence.”42
Another medium-pressure topic is whether to reconvene after a mediation session that did
not result in agreement.43 A mediation that ends without agreement is a reliable sign that the
parties believe agreement will not occur, so a mediator’s follow-up conversation might involve
pressuring the parties to reconsider a relatively firm belief.
3.
High-pressure topics
Perhaps the highest-pressure topic is whether to accept a specific settlement option.44
Mediators broach this subject in various ways. One high-pressure way is to present a “mediator’s
37
ABA TASK FORCE, supra note 4, at 7 (finding that 88% of focus group users indicated that their goal in at least
half of their cases was to settle).
38
After all, if agreement had been easy, they would not be at mediation.
39
Not all beliefs about whether to settle are firm, however. For example, a mediator’s identification of the
“transaction costs” involved with litigation is unlikely to produce undue pressure. Cf. Leech, supra note 33, at 40.
40
See Hedeen, supra note 15, at 281.
41
See Jonathan M. Hyman, Swimming in the Deep End: Dealing with Justice in Mediation, 6 CARDOZO J. CONFLICT
RESOL. 19, 33–34, 36–37 (2004)
42
Id. at 37.
43
See ABA TASK FORCE, supra note 4, at 17 (finding that 93% of users thought the mediator should follow up with
each side if the mediation ended but might still lead to agreement).
44
See id. at 14 (finding that only 74% of users thought it would be helpful in at least half of their cases for the
mediator to “apply some pressure to accept a specific solution”).
7
proposal” to both sides: “a no-negotiation, take it or leave it offer, with a short deadline for a final
response.”45 But regardless of how the mediator discusses a specific proposal, it almost certainly
will involve pressuring a party to reconsider a strongly held belief about what she hopes to gain—
or fears to lose—from the mediation.
Another high-pressure topic is how a court will rule on a substantive legal issue.46 In the
litigation context, parties routinely (though sometimes unjustifiably) predict victory at trial. Any
doubt voiced by the mediator regarding a party’s trial prospects will therefore probably involve
pressuring the party to reconsider a firm expectation.
The mediator’s perceptions of fairness are also a high-pressure topic, because voicing these
perceptions might result in the mediator “abandoning neutrality and taking sides.”47 Even if the
mediator remains impartial in fact, a party may perceive the mediator as exerting pressure to
reconsider one of her strongly held moral beliefs.
B.
Tactics
Even within a single topic, a party may feel varying amounts of pressure depending on the
intrusiveness of the mediator’s communicative tactic.48 As a general rule, “high-pressure” tactics
tend to impose the mediator’s beliefs, whereas “low-pressure” tactics do not.
1.
Low-pressure tactic: Asking questions
The lowest-pressure ways for mediators to communicate involve asking questions.49
Effective mediators can use questions to accomplish a wide variety of goals, such as gaining useful
Leech, supra note 33, at 42. Mediators use this strategy as a “last resort.” Id.
See ABA TASK FORCE, supra note 4, at 14 (finding that only 60% of users thought it would be helpful in at least
half of their cases for the mediator to predict “likely court results”).
47
Hyman, supra note 41, at 33.
48
Margaret Shaw, for example, developed an “evaluation continuum” to describe ways of evaluating cases that are
less and more “intrusive” into the parties’ own decision-making. E-mail from Margaret Shaw, Lawyer and
Mediator, JAMS, to author (Dec. 8, 2013) (on file with author).
49
See ABA TASK FORCE, supra note 4, at 14 (finding that 95% of users thought it would be helpful for the mediator
to “ask pointed questions that raise issues”).
45
46
8
information,50 helping parties explore their own motivations,51 assisting parties in adopting an
unbiased perspective,52 and guiding a party in thinking about the future.53 In addition, questions
help mediators maintain the appearance of impartiality and demonstrate a genuine desire to
understand the parties’ perspectives.
2.
Medium-pressure tactic: Making suggestions
Suggestions might exert more pressure than questions, but not by much.54
Skillful
mediators make suggestions using “phraseology that is devoid of [their] point of view.” 55 This
can be accomplished by, for example, framing the suggestion purely in terms of information,56 or
by telling a story.57 Parties will be especially open to suggestion if the mediator sets the stage
early by asking parties at the beginning of the mediation to think about creative solutions
throughout the session.58 In this way, a mediator’s suggestion may help advance discussion
without compromising the appearance of impartiality.
Near the beginning of mediation sessions, David Matz frequently asks each party, “Who else knows you’re here,
and what do they want?” The parties’ responses inform him of any “ghosts in the room.” Telephone Interview with
David Matz, supra note 26.
51
Kenneth Cloke asks questions like: “What do you really want from the other party? Why do you care so deeply
about this? What price have you paid for this conflict, and how much longer are you prepared to pay this price? Do
you really need this in your life? What is this really about for you?” E-mail from Kenneth Cloke to author, supra
note 24.
52
Along these lines, Margaret Shaw sometimes asks, “How would you prove this claim?” Telephone Interview with
Margaret Shaw, supra note 27.
53
David Matz often performs “reality testing” by asking, “What will happen if we don’t settle?” Telephone
Interview with David Matz, supra note 26.
54
See ABA TASK FORCE, supra note 4, at 14 (finding that 95% of users deemed a mediator’s “suggestions” to be
important, very important, or essential).
55
Susan Nauss Exon, The Effects that Mediator Styles Impose on Neutrality and Impartiality Requirements of
Mediation, 42 U.S.F. L. REV. 577, 610 (2007).
56
Margaret Shaw provides information like: “I’ve had cases where the company has done X.” Telephone Interview
with Margaret Shaw, supra note 27.
57
Hyman, supra note 41, at 53 (observing that the “move from formal logic to narrative” allows the “relationship
between the mediator and the parties” to “become more of a dialogue”).
58
Telephone Interview with Margaret Shaw, supra note 27.
50
9
3.
High-pressure tactic: Giving opinions
The highest-pressure modes of communication involve revealing the mediator’s personal
opinions to the parties.59 Such opinions might be one-sided (e.g., “I like the other side of this case
better than yours”60) or not (e.g., “it looks like a horse race to me that either side could win” 61).
These opinions exert especially high pressure in areas where parties are ignorant or
inexperienced.62
There are, however, techniques with which a mediator can deliver an opinion in a way that
exerts less pressure. For example, the mediator could phrase the opinion positively, 63 or introduce
the opinion humorously,64 or follow the opinion with a question.65 The mediator could maintain
impartiality by providing the same type of assessment to all disputing parties.66 In addition, the
mediator could protect parties’ autonomy by giving a clear and early warning about the limitations
of the opinion,67 by providing the context and basis of the opinion,68 and by urging parties to get a
second opinion.69
Regardless of how the opinion is delivered, however, it may risk applying too much
pressure on the parties and converting the mediation process “into a conversation in which people
listen to—and abide by—what the intervener promotes.”70
See ABA TASK FORCE, supra note 4, at 14 (finding that only 70% of users deemed a mediator’s “opinions” to be
important, very important, or essential).
60
Id. at 15–16.
61
Id. at 15.
62
Hyman, supra note 41, at 46.
63
E.g., “Your first argument seems stronger than your second argument.” Telephone Interview with Margaret
Shaw, supra note 27.
64
E.g., “Suing your past employer isn’t the best way to get a new job these days.” Id.
65
E.g., “X seems to be the case; what do you think?” Id.
66
See Exon, supra note 55, at 609.
67
Lela P. Love & John W. Cooley, The Intersection of Evaluation by Mediators and Informed Consent: Warning the
Unwary, 21 OHIO ST. J. ON DISP. RESOL. 45, 66–67 (2005).
68
Id. at 70.
69
Id.
70
Joseph P. Stulberg, Must a Mediator Be Neutral? You’d Better Believe It!, 95 MARQ. L. REV. 829, 858 (2012).
59
10
IV. PRESSURE VALVES
Whereas “pressure inputs” are ways in which mediators may apply pressure to parties,
“pressure valves” are situational characteristics that mitigate the negative effects of such pressure.
A mediator could apply the same pressure inputs to two different parties with radically different
impacts on each,71 due to a difference in pressure valves.
Below is a rough description of various pressure valves, some of which are observable at
the beginning of a mediation, others of which do not appear until hours into a mediation. The list
is neither exhaustive72 nor conclusive.73 In general, the more pressure valves are present in a
situation, the more appropriate mediator pressure will be in that situation.
A.
Parties’ Motivations
Where the parties are primarily economic actors who have chosen to pursue mediation in
a purely private setting, mediation pressure is more fitting than where the mediation is courtsponsored.74 This is because in court-sponsored mediation, parties may have already felt pressure
from the judge (whether or not the judge so intended),75 so further mediator pressure might begin
to infringe on party self-determination. Conversely, however, a party that lacks good faith or any
intention of cooperating may merit increased mediator pressure, to help steer the party toward a
resolution.76
71
See Matz, supra note 6, at 63.
An actual list of pressure valves would be “endless.” Telephone Interview with David Matz, supra note 26.
73
There is “no one-size-fits-all” method of deciding whether mediator pressure is appropriate in a given situation.
Telephone Interview with Margaret Shaw, supra note 27.
74
Stephen B. Goldberg & Margaret L. Shaw, Is the Mediator’s Primary Goal to Settle the Dispute?, 15 DISP.
RESOL. MAG. 16, 17 (2009) (citing Wayne Brazil, Hosting Mediations as a Representative of the System of Civil
Justice, 22 OHIO ST. J. ON DISP. RESOL. 227, 237–38 (2007)).
75
Hedeen, supra note 15, at 278–79.
76
Kidner, supra note 19, at 188.
72
11
In addition, where parties come to mediation expecting mediator pressure, such pressure is
more likely justified. Parties probably expect mediator pressure when they hire a mediator “to
secure a speedy and inexpensive resolution”77 or when they believe they are attending “an
evaluative mediation in which the mediator will be intervening to assertively direct them towards
a resolution.”78 Indeed, some “sophisticated buyers” may “knowingly select mediators who
employ more or less pressure.”79
B.
Parties’ Relationships with Others
Some parties have established only a temporary relationship with each other that will not
continue beyond their present dispute; other parties have developed a longstanding relationship
that they hope to maintain.80 Mediator intervention might be more appropriate in the temporary
relationship, because such parties are probably less motivated to cooperate and less likely to
fashion a creative solution uniquely tailored to each other’s needs. 81 On the other hand, even
longstanding relationships may call for mediator intervention “when there is an extreme power
imbalance,” because such cases might otherwise “result in a solution that is grossly unfair to one
side or contrary to public policy or the law.”82
Also, mediator pressure is less likely to violate party self-determination if the parties have
retained competent counsel who are present at the mediation.83 Without competent counsel, parties
77
Id. at 184.
Id. at 189.
79
Hedeen, supra note 15, at 285 (citing John Lande, How Will Lawyering and Mediation Practices Transform Each
Other?, 24 FLA. ST. U. L. REV. 839, 850).
80
Kidner, supra note 19, at 180.
81
See id. at 181.
82
Id.
83
See ABA TASK FORCE, supra note 4, at 14–15 (finding that 25% to 60% of users indicated that the
appropriateness of a mediator’s assessment of strengths and weaknesses would be affected by various factors
including “whether all counsel seem competent”).
78
12
may look to the mediator for advice,84 which would heighten the coercive effects of mediator
pressure.
In addition, where the parties have relationships with vulnerable third parties “who may be
negatively affected by the mediated outcome,” mediator pressure might be more warranted.85 Such
situations arise in the family law context, for example, if there are children involved.86
C.
Attorneys’ Motivations
Attorneys have a strong incentive to argue the strengths of their case while they are with
their client, but they might be more candid about the weaknesses of their case while speaking with
the mediator privately.87 If the mediator knows that the attorney’s advocacy is motivated primarily
by a desire to represent the client zealously (as opposed to a belief in the actual merits of the
client’s case), mediator pressure on the client might be more appropriate—indeed, the attorney
might be hoping for such pressure.88
Similarly, attorneys tend to want mediator pressure more than parties, even in the form of
high-pressure tactics on high-pressure topics, such as the mediator’s sharing an opinion about a
specific settlement offer.89 This is especially true of experienced attorneys.90 Accordingly,
mediator pressure might be more fitting where the attorneys clearly seek it.
84
Telephone Interview with David Matz, supra note 26.
See Kidner, supra note 19, at 182.
86
Id.
87
Telephone Interview with David Matz, supra note 26.
88
Id.
89
See ABA TASK FORCE, supra note 4, at 15 (finding that a majority of studied parties objected to mediators telling
them whether to take a settlement offer, whereas only a minority of lawyers objected to such action).
90
See id. at 16 (finding that “a substantial majority of lawyers who are repeat mediation users . . . favor use of what
we have described as analytical techniques”).
85
13
D.
Parties’ Relationship with the Mediator
Perhaps the most significant pressure valves depend on the relationship that the mediator
has developed with the parties.91 Mediator pressure is more likely to be appropriate when the
parties trust the mediator. Trust develops when the parties perceive the mediator as impartial,92
sincerely trying to help,93 understanding of the parties’ points and perspectives,94 well-prepared,95
and experienced.96 If the party considers her relationship with the mediator to be a “trusting
relationship built on rapport,”97 mediator pressure will be less likely to violate party selfdetermination.
Relatedly, mediator pressure is more appropriate where the parties explicitly ask for the
mediator’s assessment,98 but can be incendiary when no such request is made.99 On the other hand,
when the parties seem to lack any ability to resist mediator pressure, such pressure is dangerous,100
even if the parties request the mediator’s assessment.
See Matz, supra note 6, at 365 (“The acceptability of particular techniques depends almost completely on the
subtleties of the relationship between mediator and party.”).
92
See ABA TASK FORCE, supra note 4, at 14–15 (finding that 25% to 60 indicated that the appropriateness of a
mediator’s assessment of strengths and weaknesses would be affected by various factors including “whether [the]
mediator seems impartial”).
93
Telephone Interview with Margaret Shaw, supra note 27.
94
E-mail from Margaret Shaw to author, supra note 48.
95
See ABA TASK FORCE, supra note 4, at 6 (noting that a “very high percentage of the survey participants endorsed
some kind of mediator preparation”).
96
See Lovell, supra note 21, at 30 (“[A] mediator who has specialized in a particular industry for a number of years
will probably find it possible to use techniques which an ad hoc mediator cannot.”).
97
Matz, supra note 6, at 363.
98
See ABA TASK FORCE, supra note 4, at 14–15 (finding that 25% to 60 indicated that the appropriateness of a
mediator’s assessment of strengths and weaknesses would be affected by various factors including “whether
assessment is explicitly requested”).
99
See John W. Cooley & Lela P. Love, Midstream Mediator Evaluations and Informed Consent, 14 DISP. RESOL.
MAG. 11, 12 (2008) (“Unsolicited opinions often provoke defensive, even hostile, reactions, particularly if the
opinion is unfavorable.”)
100
Telephone Interview with David Matz, supra note 26.
91
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E.
Timing
Some parties quarrel for a long time before coming to mediation; other parties enter
mediation soon after beginning to dispute.101 Mediator pressure is probably better-suited for
parties who are in a later stage of conflict, because such parties “may be so entrenched in their
positions that they are no longer willing to communicate on their own and be creative about mutual
problem solving.”102
Timing within the mediation itself also plays an important role. Mediators usually wait to
apply pressure until relatively late in the mediation,103 because this “allow[s] the parties to uncover
all of the underlying issues and interests and get everything that is at issue on the table,” 104 and it
ensures that parties “have listened to each other.”105 Additionally, pressure might be particularly
well-received during a more informal period of the mediation session,106 and it might be especially
helpful when the parties have reached an impasse.107
V.
PRESSURE GAUGES
“Pressure gauges” are signals that mediator pressure has gone too far—i.e., the mediator
has applied overly high-pressure inputs to a situation that contains insufficient pressure valves.
The result is that parties feel coerced, and party self-determination is violated. Pressure gauges
help the mediator diagnose this problem.
101
See Kidner, supra note 19, at 185–86.
Id. at 187.
103
Margaret Shaw, for example, follows a general rule of “no evaluations until after lunch.” Telephone Interview
with Margaret Shaw, supra note 27.
104
Id. at 185.
105
Hyman, supra note 41, at 55.
106
Telephone Interview with David Matz, supra note 26.
107
See ABA TASK FORCE, supra note 4, at 14–15 (finding that 25% to 60 indicated that the appropriateness of a
mediator’s assessment of strengths and weaknesses would be affected by various factors including “whether
assessment is given before apparent impasse or only after impasse”).
102
15
Pressure gauges manifest themselves in the parties’ reactions to the mediator. If a party
feels coerced, she might react in either of two extreme ways. On one extreme, the party may
become adamantly opposed to the mediator. She might shut her eyes and declare, “No, no, no!”108
She might argue with the mediator, question his credentials, or challenge his decisions.109 On the
other extreme, the party may become largely apathetic toward the mediator. She might accede to
the mediator by saying, “Oh fine. If you insist.”110 She might avoid looking at the mediator,
appear to be fading out, or pull away from the table.111
Unfortunately, pressure gauges are very limited measurement tools. Some parties do not
outwardly indicate coercion, and others might do so only in subtle ways. More significantly,
pressure gauges are not preventive or even predictive: they serve only to signal when party selfdetermination has already been violated. Accordingly, mediators should not attempt to toe the line
between acceptable and unacceptable pressure, because there is no sure way to see that line.
If party self-determination has been violated, one way to try to restore it is to “offer the
party some space.”112 For example, if a proposal is on the table, the mediator can say, “Would you
like to take a ten-minute break to consider this idea?”113 Or if an agreement has been reached but
not finalized, the mediator can propose a 24-hour break, during which the parties can consider the
agreement, discuss it with others, and back out if they choose.114 These techniques may not fully
repair the relationship between the party and the mediator, but they probably will at least protect a
settlement agreement from the objection that it was coerced.
108
This illustration was posed by David Matz. Telephone Interview with David Matz, supra note 26.
See JENNIFER E. BEER & EILEEN STIEF, THE MEDIATOR’S HANDBOOK 77 (1997).
110
Matz, supra note 6, at 364.
111
See BEER & STIEF, supra note 109, at 77.
112
Matz, supra note 6, at 364.
113
Id.
114
Id.
109
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VI. CONCLUSION
This paper has attempted to sketch a rough picture of how mediators apply pressure
(“pressure inputs”), what determines whether pressure is appropriate (“pressure valves”), and how
to tell when too much pressure has been applied (“pressure gauges”). This paper has not provided
any exhaustive lists or bright-line rules, largely because the subject of mediator pressure does not
lend itself to that sort of analysis.115 Hopefully, however, this paper has provided the reader with
a clearer sense of how, and when, a mediator might apply pressure.
Hyman, supra note 41, at 45 (“The extent to which a mediator is directive in a mediation – or any specific part of
the mediation – depends to a great degree on the mediator’s professional judgment about the specifics of the
situation at hand, informed by the mediator’s respect for the parties’ autonomy and freedom of choice.”).
115
17