Ohio State Journal on Dispute Resolution
This Article describes what a group of real disputants perceives as most valuable about agency-connected mediation before, soon after, and eighteen months after they participated in the process. The Article is based primarily upon qualitative data from in-depth interviews with parents and school officials who participated in special education mediation sessions. Though the specific context of these interviews is obviously important, these disputants and their disputes share many commonalities with disputants and disputes in other contexts and, as a result, these disputants' views have relevance for the broader field of mediation.
These interviews suggest that both before and after disputants experience mediation, they place great value upon mediation’s ability to improve the “procedural justice” of their discussions and decision-making – i.e., improving their ability to speak, be heard and be treated in an relatively dignified and even-handed manner. Just as importantly, however, the disputants value mediation’s ability to deliver resolution of the disputes that gave rise to the invocation of mediation – or at least meaningful progress toward that resolution. They seek improvement upon their currently conflicted situations.
Further, the interviews suggest that if disputants are reassured that the mediation process and the mediators’ behavior are grounded firmly in procedural justice, they also value an eclectic and apparently conflicting variety of mediator interventions designed to move disputes toward some form of clarification or resolution. These reactions suggest that the mediation field’s current debate over the relative superiority of “evaluative,” “facilitative,” or “transformative” approaches misses the point. Depending upon their implementation, all of these types of interventions have the potential to be consistent with and enhance mediation’s dual promise of procedural justice and resolution. All three types of interventions, however, also have the potential to hinder the dual achievement of procedural justice and resolution. Thus, the focus of the field should not be upon ensuring orthodoxy with any particular mediation model, but with crafting processes that use all three types of interventions in a manner that serves both procedural justice and resolution.
The post-mediation interviews also reveal the increasingly dominant technique of caucus as a tool that is particularly important to disputants as they reflect on their mediation experience. Further, caucus is revealed as a particularly potent tool. It can be very effective in helping to produce settlements and providing an opportunity for disputants to be heard. But caucus also may reduce disputants’ ability to hear each other and may invite the use of coercive or manipulative bargaining behaviors. These uses of caucus can endanger the goal of offering an experience of justice in mediation. Thus, these interviews suggest that the technique of caucus deserves much more attention from researchers, mediators, trainers, and policy makers.
Ohio State University, Moritz College of Law
Nancy A. Welsh,
Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value,
Ohio St. J. on Disp. Resol.
Available at: https://scholarship.law.tamu.edu/facscholar/947