Friendly Persuasion in Civil Case Mediations

Date01 March 2014
Published date01 March 2014
Friendly Persuasion in Civil Case Mediations
James A. Wall Jr.
Suzanne Chan-Serafin
is study investigates why mediators’ assertive strategies—evaluative
and directive—did not generate high disputant dissatisfaction when
they produced agreements. We thoroughly investigated the transcripts
from fi fty cases in which the mediators had used assertive strategies and
attained agreement. We found that mediators did not irk disputants
because the mediators complemented their strategies with four tactical
approaches. First, they established their legitimacy, and when mediating
they shifted their strategies (from assertive to neutral or vice versa) round
by round.  ey also used a ratchet approach to nudge disputants toward
agreement, and they took steps to reduce the disputants’ aspirations.
In a recent observational study of one hundred civil case mediations
(Wall, Dunne, and Chan-Serafi n 2011), we were surprised to fi nd that
mediators could use assertive strategies to obtain settlements without overly
sacrifi cing disputant satisfaction with the mediation. We strive to explain
this counterintuitive discovery in this article.
The Literature
It is worthwhile to study mediators’ strategies and their outcomes (e.g.,
settlement) because they lie at the core of the mediation process (Bercovitch
and Schneider 2000). In this process, the mediators’ choice of strategies is
aff ected by the environment—the confl ict types, culture, country, and
institutions—in which they mediate (Wall and Dunne 2012).
As mediators decide which strategies to employ, their choices are also
determined by their goals relative to the current state. Control theory
C R Q, vol. 31, no. 3, Spring 2014 285
© Wiley Periodicals, Inc. and the Association for Confl ict Resolution
Published online in Wiley Online Library ( • DOI: 10.1002/crq.21092
C R Q • DOI: 10.1002/crq
(Vancouver 2005) indicates that when there is a discrepancy between the
mediators’ goals (e.g., an agreement; Firestone 2009) and the current state
(e.g., nonagreement), the mediators select a strategy or a mix of strategies
that is intended to modify the current state.
e disputants also seek their goals, interact with each other, and inter-
act with the mediator.  is dynamic, and often lengthy, interactive media-
tion process has outcomes for the disputants (Ashford and Faith 2004), the
mediator (Hedeen 2004), and third parties who are not at the table but
are aff ected by the outcome (Koksal 2006). Two of the major outcomes for
the disputants are an agreement that settles or ends the dispute (Kressel
and Pruitt 1989) and greater satisfaction (Druckman, Druckman, and Arai
2004). For the mediator, resolution of the dispute is also a principal out-
come (Bingham 2004). And for third parties, the outcomes can include the
agreement (Landsman,  ompson, and Barber 2003), shortened court
dockets (Van Epps 2001), and reduced case overloads (Swendiman 2001).
When considering the mediation process, scholars and practitioners
have raised and investigated two central questions: What are the mediators’
strategies? and What are their eff ects? As for the types of strategies, approx-
imately twenty-fi ve are reported, such as analytic (Birke 2000), evaluative
(Lande 2000), pressing (Kichaven, 2008), facilitative (Gabel 2003), and
neutral (Kydd 2003).
Turning to the second question, concerning the outcomes of the strate-
gies, we fi nd signifi cant discussions of the eff ects of the pressing and evalua-
tive strategies (i.e., the more assertive ones).  e pressing strategy is one in
which the mediators call for concessions, express disappointment, note lack
of progress, reduce the disputants’ aspirations, and nudge them toward
agreement.  e evaluative strategy is one in which the mediators analyze the
case in a balanced fashion and point out each side’s strengths and weaknesses.
ese assertive strategies are predicted to produce more agreements
because they give disputants realistic perspectives, move them off positions,
and push them toward agreement.  is prediction—that assertive strategies
lead to a higher level of agreements than do neutral ones (in which media-
tors take off ers back and forth, do not tell the disputants what to do, and
refrain from evaluating or attempting to press disputants off positions)—
has been supported by the mediation literature. Specifi cally, Hiltrop (1985)
reported that assertive mediator activities led to more settlements in British
strikes. Carnevale and Pegnetter (1985) demonstrated that a pressing strat-
egy was eff ective in labor mediations. In international dispute mediations,
Bercovitch (1989) showed that assertive strategies were more successful in

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