How Active Should a Mediator Be in Pushing for Resolution?

The panel of mediation experts who addressed this question in an ADR Section-sponsored phone conference today concluded, “It depends.” The more parties trust the mediator, the more the mediator can push without appearing “pushy.”

From a legal perspective, mediators can be as pushy, or coercive, as they want to be, without repercussion. Prof. James Coben of Hamline University Law School reported that, although there are a dozen cases a year nationally where parties claim mediator coercion, courts aren’t receptive to such claims, partly because courts favor settlements, and partly because the legal definition of “coercion” doesn’t fit mediation, where the complaint is not about the other party to the contract, but to a third party.

But from a professional perspective, a party who felt pushed into a resolution is not a satisfied customer. So the panel developed an impromptu list of “best practices” to help a mediator avoid pushing too hard for a resolution:

  • Mediators should always begin facilitatively, in order to build trust.
  • Beware that coercive possibilities increase as time goes on; the longer the mediation session, the more likely that a party will feel undue pressure.
  • Attend to party requests to take a break, or to cease altogether.
  • Consider letting parties leave without signing an agreement, so they can “sleep on it” – although the panel agreed that this will likely result in fewer agreements.
  • Be gracious and artful in raising risk-exposing questions. If a party has a past drunk driving conviction, Mediator can ask, “Have you had conversations about how this will play out?” instead of, “You’re going to look like an idiot if this comes out!”
  • Beware of party perceptions – the mediator may be communicating what the other side told her to say, but a party may perceive it as the mediator’s own opinion.
  • Make sure parties go through domestic violence screening, and refuse to mediate a case where domestic violence patterns may make mediation ineffective.

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