Mediator Thinking in Civil Cases

AuthorJames A. Wall,Kenneth Kressel
Published date01 March 2017
Date01 March 2017
C R Q, vol. 34, no. 3, Spring 2017 331
© 2016 Association for Confl ict Resolution and Wiley Periodicals, Inc.
Published online in Wiley Online Library ( • DOI: 10.1002/crq.21185
Mediator Thinking in Civil Cases
James A. Wall
Kenneth Kressel
In this study we investigated mediators’ thinking in twenty real-life civil
case mediations. We found evidence that their thinking unfolds along
two planes: one intuitive (system 1) and the other rational (system 2).
On the former, mediators frame the mediation as a distributive process,
instinctively evaluate the situation as well as the parties, and engage in
habitual interventions. On the rational plane, the mediators develop
goals, rationally evaluate the situation, mentally map what is going on,
and choose among a variety of rational steps, such as pressing, delaying
the mediation, and extracting off ers, in order to accomplish their goals.
I n civil cases, mediators have a lot to think about. When off ered a case,
they consider whether to accept it. Subsequently they may examine the
case, as well as the characteristics of the dispute, who the disputants are,
what their attorneys are like, and what their goals might be.
With these issues in mind, mediators then think about their own goals
(e.g., settlement and pleased clients) and about techniques to accomplish
them. When applying these techniques, the mediators presumably sur-
mise whether they are eff ective and consider major modifi cations or subtle
ne-tunings. Mediators are also likely to consider what will happen if the
mediation fails and the case goes to trial.
While the practitioner literature suggests that mediators do much
thinking of these kinds, the research literature pays scant attention to their
contemplations.  ere are ample studies of mediators’ goals, techniques,
styles, outcomes, and interactions with the disputants (Wall and Dunne
2012 ); however, with a few notable exceptions (Kressel and Gadlin 2009 ;
We thank Kyle Holley and Natalie Cleeton for their assistance.
332 W, K
C R Q • DOI: 10.1002/crq
Kressel et al. 2012 ), there is little empirical work on the thinking that
underpins them.
In this article, we seek to address this defi ciency using a study of twenty
real-life mediations occurring in the context of civil case disputes between
plaintiff s claiming injury and defendants claiming limited or no culpabil-
ity.  ese kinds of mediations have become common and important in our
civil justice system (Wall and Chan-Serafi n 2009 ); however, we are aware
of no investigations that focus on mediator thinking in such contexts.
We embark on this journey for three reasons.  e primary one is self-
evident: thinking lies at the core of the mediation process and therefore
should be understood. Knowledge in any fi eld has intrinsic value. It is
better to know what is going on than to be ignorant of the facts. Knowl-
edge also enhances the credibility of the thinkers and the profession in
which they are embedded. For example, the credibility of geneticists and
the fi eld of genetics skyrocketed with the identifi cation of the DNA dou-
ble helix.
Second, understanding and explaining mediators’ cognitions provides
a base for correcting errors in our knowledge. Consider that mediators’
self-reports are often inaccurate; they often report they respond appro-
priately to varying conditions, and such reports have spawned a widely
held model that mediators adaptively select their techniques according to
the situation. However, current investigations indicate this is not the case
(Kressel 2013 ); rather, mediators typically rely on their preferences and
tend to use the same strategy across diff erent situations. One reason for the
discrepancy may be rooted in the fact that important aspects of mediator
thinking occur at a tacit, unconscious level, a phenomenon that has been
documented in other realms of professional practice (Klein 1998 ).
ird, understanding mediators’ thinking may help scholars and prac-
titioners improve mediation practice. Consider that some mediators collect
and possess useful knowledge that they do not use because their conscious
cognitive schemas block access to tacit levels of thinking. If the mediators’
thinking were explored at both the conscious and tacit levels, eff orts to
improve practice would rest on a more solid foundation.
is article is organized as follows. First, we describe the context and
nature of civil case mediation and delineate our initial assumptions about
the nature of mediator cognition. We then report our methods for captur-
ing that thinking, the results these methods generated, and our sense of
their import for future studies of mediator cognition and the improvement
of mediator practice.
Mediator Thinking in Civil Cases 333
C R Q • DOI: 10.1002/crq
The Civil Case Mediation Paradigm
Civil case mediations operate within the environment of the U.S. civil
courts, which adds over 250,000 civil cases (Wall and Chan-Serafi n 2009 )
to the mediation system each year.  ese cases entail automobile accident
suits, medical malpractice claims, contract disputes, and personal injury
claims but not criminal cases. In addition, the court system places norms
on the mediators: they are to be neutral, give no legal advice, have no con-
icts of interest, and act professionally.
In the mediation are a mediator and two or more disputants (referred
to as plaintiff s and defendants), as well as their attorneys, who interact to
determine whether there will be an agreement, referred to as a “settlement.
If there is no agreement or settlement, the case goes to trial, and here the
mediator has no role.
e mediators are typically retired judges and practicing or retired
attorneys who have decades of legal experience, have been trained in medi-
ator practice, and have been certifi ed to practice mediation. As for the
plaintiff and defense attorneys, they most often are the original attorneys
who represented the disputing parties in their cases prior to the mediation,
who remain aboard for the mediation, and they will represent their clients
if the case goes to trial.
Initial Assumptions
When considering this paradigm and the participants’ behaviors, we
adopted three premises. First, we held that mediators have goals and pur-
sue them. With regard to this assumption, the literature is replete with
prescriptions and proscriptions for the mediators’ objectives (e.g., Craig
2008 ; Portman 2009 ; Umbreit, Coates, and Roberts 2000 ), and our own
summary of research on mediator styles (Wall and Kressel 2012 ) indicates
that mediators do target a variety of goals. Given these reports, we felt it
was safe to assume that our mediators would have goals, and we wanted to
determine which were the primary ones they think about.
Second, we felt that mediators’ thinking almost certainly operates at two
levels: conscious (system 2) and nonconscious (system 1). Within the con-
scious level, we assume that mediators, before and during the mediation,
develop goals, take rational steps to pursue them, and note whether they
are accomplished. At the intuitive (system 1) level, mediators, we assume,
can unknowingly be strongly infl uenced by emotions (e.g., impatience,

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