What's going on in mediation: An empirical analysis of the influence of a mediator's style on party satisfaction and monetary benefit.

Abstract

The use of mediation to resolve a wide range of legal and other disputes continues to increase. As mediation enters the mainstream, business, community, and legal dispute resolution scholars have paid increasing attention to the dynamics of the mediation process. We use quantitative analysis from a large database of cases mediated at the Equal Employment Opportunity Commission (EEOC) to describe "what's going on" in the field of mediation. Using a database of 645 employment law cases mediated under the EEOC's mediation program, we analyzed various self-reported mediator behavior. We first examined the types of mediator behavior (facilitative, evaluative or hybrid) used by mediators in this "facilitative" program. We then examined whether a particular mediation style resulted in a higher participant satisfaction rating across procedural due process and distributive variables, whether a particular style resulted in a higher settlement agreement, and whether representation affected the amount of money obtained in mediation. The findings of this study have important implications for the practice of mediation and the academic debate surrounding the issues of mediator style and dispute resolution program design. Our results show that: (1) both the charging party and the respondent rate facilitative mediation more favorably than evaluative mediation; (2) evaluative mediation results in a higher monetary settlement; (3) mediation models that limit the role of representation are inherently suspect; and (4) it is a challenge for a facilitative program to prevent some mediators from using evaluative techniques.