Friendly Persuasion in Civil Case Mediations

• Author: Suzanne Chan‐Serafin,James A. Wall
• Date: 01 March 2014
• DOI: http://doi.org/10.1002/crq.21092
• Published date: 01 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 (wileyonlinelibrary.com) • DOI: 10.1002/crq.21092

286 WALL, CHANSERAFIN

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