Abstract
A survey of thirty experienced mediators showed that three‐quarters of them regarded achieving rapport with the parties as central to their success in bringing about settlements. This article discusses how mediators achieve and make use of that rapport. The article also considers the implications for mediator training of the finding that achieving rapport with the parties is a key factor in successful mediation.
Introduction
The key to mediator success lies in developing rapport with the disputing parties. If the mediator is unable to develop rapport, it matters little how proficient the mediator is with the many tactics that are espoused in the mediation literature and taught in mediator training — success in bringing disputing parties to a resolution of their dispute is unlikely.1 This is the conclusion that I reached after asking experienced mediators how they accounted for their successes. The overwhelming response given by more than 75 percent of the respondents was that the key element in successful mediation is developing rapport with the parties.
Methodology
The sample of experienced mediators was drawn primarily from the membership lists of two organizations, Mediation Research & Education Project, Inc. (MREP) and the Senior Mediators Group (SMG). MREP comprises approximately seventy mediators, nearly all of whom focus on labor– management dispute resolution, as well as some employment mediation. SMG comprises twenty mediators with a wide range of practices. Most SMG mediators work primarily in the commercial and employment areas, but others work in the public policy and environmental fields, as well as in labor–management and family disputes. (Three mediators are members of both MREP and SMG.)
In February 2004, I sent the following memorandum to all MREP and SMG mediators and to six additional experienced Chicago mediators who are not members of either group:
I’d like to ask your help on what may turn out to be an interesting paper. In recent conversations with experienced mediators, I have frequently asked, “How do you account for your success as a mediator? What skills and techniques do you have that you think enable you to get settlements?” I have found the answers to these questions to be quite interesting and often somewhat different from what one finds in the mediation literature.
That leads me to ask if you’d respond in writing to the above questions . . . I certainly don’t expect a lengthy response, somewhere between one paragraph and a page or two would be fine. I would, however, appreciate the most candid response possible, not necessarily what you would say for publication, but what you really view as your essential strength(s) and technique(s).
Of the ninety‐three mediators to whom the memorandum was sent, thirty‐five responded, but five were removed from the sample, because they had not mediated at least fifty disputes. The final sample consists of thirty mediators, twenty‐eight of whom have mediated at least one hundred disputes, and two have mediated more than fifty but less than one hundred disputes. The mediators who make up the final sample are thus described as experienced.
Of the thirty mediators in the final sample, nineteen are male, eleven are female. Nineteen have law degrees; eleven do not. Their ages range from early forties to mid‐seventies; 80 percent are over the age of fifty, half are over sixty. Thirteen are members of MREP, eleven are members of SMG, two are members of both MREP and SMG, and four are Chicago mediators who are members of neither MREP nor SMG.
Results
Building Rapport
As previously noted, the overwhelming majority of the mediators (more than 75 percent of them) stated that a central reason for their success was their ability to develop rapport with the disputing parties — a relationship of understanding, empathy, and trust. Among their comments were:
I am able to persuade all parties that I genuinely care about their problems and that I will do all in my power to assist them in obtaining a satisfactory resolution of those problems. I could not succeed in persuading them of this fact if it were not true, and it is true. I feel and display empathy, while never so much as hinting that I am more interested in helping one side more than the other side.
Crucial to establishing this bond is developing in each party the sense that I really care about them . . . and I do . . . you can’t fake it.
I think the greatest and most useful skill I have is the ability to gain people's trust. I am fairly direct. They come to believe that I will not lie or mislead them, and that I am interested in reaching a settlement that works for them . . .
I think a primary reason for my effectiveness as a mediator is an ability to make any party to a dispute — whether a CEO or a garbage collector — feel that I understand and respect that individual's position.
I believe that one of my strongest assets, which enhances my ability to secure successful mediation outcomes, is an innate ability to connect with the participants from the outset of the session. Also, I am cognizant of the need to continue to build that rapport throughout the mediation process.
In many mediation sessions, I find that the capacity to hear people's concerns, feel their pain, see their points of view is crucial to helping them to articulate their hopes for resolution and to identify their interests.
I try harder now to establish rapport. Before, “when I was young,” I relied mostly on my own personality and, of course, still do. But now I also try to assess what kind of person the party with whom I am speaking wants or needs and try to fill that role so they will open up more than they might otherwise.
Empathy . . . is the quality that I credit for most of the success I [have] had in mediation . . . At times my understanding of: (1) the dynamics of the conflict; and (2) the needs of the parties were critical, but they often came from my efforts to empathize.
I should note that the comments of the mediators in this study are based upon their own personal observations and reflections. Certainly, the disputants or outside observers might view the mediators’ activities in a different light, as the following excerpt from the research literature indicates:
Some years ago, my colleague and friend Kem Lowry . . . did an analysis of some thirty successfully mediated cases. . . . First Kem asked the mediators . . . to explain what they did to bring about success. Then he asked the parties in the same cases what they actually observed the mediators doing. The mediators . . . gave elaborate explanations of strategies, timing, and tactics. “We identified how we went about conducting our conflict analyses and circumscribing issues to be worked on. We deciphered the breakdowns, breakthroughs, and the windows of opportunity both lost and found. The participants in our cases had a very different view. The only thing they recalled us doing was opening the room, making coffee, and getting everyone introduced.” (Adler 2003)
While it is unquestionably true that the mediators’ views concerning the effect of their behavior in bringing about settlement represent only one perspective, it is nonetheless an important perspective and worthy of consideration. This is particularly true when, as in this study, the mediators’ perspectives are the result of many years of experience.
Why is it so important to establish a relationship of trust and confidence with the parties? The primary reason, according to the mediators, is that such a relationship encourages the parties to communicate more fully with the mediator, often providing her with the information she needs to help the parties craft a settlement:
The reason that I think it is so important to establish this bond of liking the people and caring about their problems is so that they will trust me and take me into their confidence, telling me their interests, priorities, fears, weaknesses, etc. This information is often the key to settlement . . . their telling me what they haven’t told the other party.
If you can get the parties to trust you, you hear a lot more and they entrust you with more real info re settlement possibilities, and you can say more to move things along.1
Some research supports the importance of enhancing the mediator's credibility and the trust that the disputants place in him. William H. Ross and Carole Wieland suggest that “credibility‐enhancing activities . . . serve a doubly useful purpose: not only do such activities give the mediators the credibility to offer suggestions designed to resolve the dispute, they may also create a climate where the parties trust the mediator, allowing the mediator to attempt relationship building between the parties . . . ” (Ross and Wieland 1996).
But a more open communication with the parties is not the only advantage of a trust relationship:
That relationship gives each party comfort and confidence that I can “explain” their position to the other party.
At the end, when I am pushing hard and may have to say, “I just don’t think you are going to get that,” this trust means that I am believed and not seen as a tool of the other side.
In view of the importance of a trust relationship with the parties, what can the mediator do to bring about such a relationship? Here, too, a substantial majority of the mediators agreed that the key lies in empathic listening, which conveys the message that the mediator truly cares about the parties’ feelings, needs, and concerns.
I take the time to really listen to each party's feelings and concerns, and continue to acknowledge the factors that make it difficult for that party to move toward settlement.
I ask lots of questions and listen carefully to the responses. . . . This . . . develops a bond between me and the party I am with (empathy, not sympathy). This bond will lead to a desire to not disappoint the mediator by failing to arrive at a settlement.
For most of my career I was a non‐threatening good listener. . . . The fact that I am an informal, short‐in‐height, long‐in‐hair, female enabled me to “be” with the parties . . . and listen to them and not be the center of attention as some older, male, and more charismatic mediators might be . . . I look like I care (and I do) about listening to people and they often tell me what they really want. . . .
Finally, some mediators thought that a key element in their success at developing rapport with the parties was their own reputation for being honest, ethical, and trustworthy.
Creating Solutions
While an empathic, trusting relationship between the mediator and the parties may be the most important factor in creating an environment for settlement, it will not in itself lead to a settlement. Kenneth Kressel and Dean G. Pruitt refer to the development of rapport as a “reflexive” tactic, designed to orient mediators to the dispute and to create a foundation for their future activities (Kressel and Pruitt 1985). Accordingly, the next question is, “What does the mediator who has developed rapport with the parties do to move those parties toward settlement?”
Foremost among the tactics thought by the mediators in this study to be central to their success — once they had achieved rapport — was their ability to generate novel or creative solutions to the dispute. (Fourteen of the thirty mediators, just under 50 percent, referred to this as one of their central strengths or techniques.) Some mediators attributed this ability to inherent creativity on their part:
I can think outside the box; i.e., be extremely creative. Even if the proposed solution isn’t appropriate or won’t work (and I know it) it gets the parties thinking along some new lines. [Roger] Fisher and [William] Ury talk about enlarging the pie; I often get the parties to “change the type of pie they are dividing” (Fisher, Ury, and Patton 1991).
I work very hard to find a way to frame an understanding of the conflict that is different than the understanding of each (or all) of the parties but that incorporates the understanding or framing of each of the parties.
It is vitally important to be able to think of new ways of dealing with issues — inventing options, some of which may be largely symbolic but which acknowledge feelings, perceptions, hurts that might otherwise block meaningful and fair resolution.
Other mediators attribute their ability to develop creative solutions to careful listening:
If we listen to the parties closely enough, they will tell us, typically unintentionally, what will settle the dispute.
My greatest weakness is a lack of creativity. I am a fairly intelligent person, but I think linearly and not holistically. That sometimes means that I have to rely on keeping the parties talking with the expectation that someone other than me will come up with a creative and acceptable solution.
I am a very good listener, and I hear many expressions that others at a mediation table miss, including “almost offers.” It then becomes a relatively simple task of translation.
Some mediators commented on the importance of attributing the mediator's creative settlement ideas to the parties.
While I think I am quite creative, I try very hard to attribute my creativity to the parties, so that they will think that the good ideas are theirs. I will say, for example, “What you just said suggests that [insert my idea] might work,” or, “As I’ve been listening to you, I’ve realized that you are really suggesting [insert my idea].” The reasons for this approach are obvious to all experienced mediators.
Being creative in using the info you obtain from careful listening in thinking about solutions . . . but, through questioning, letting them think they have come up with the solution.
Two other tactics that were frequently cited as effective ways of moving disputing parties toward settlement were using humor to reduce tension and combining patience and tenacity to continue to encourage settlement even after one or both of the parties have become convinced that settlement is impossible:
Finally, there is just plain old persistence, insisting on keeping on until I’m certain there is no settlement. Sometimes I use reverse psychology to accomplish this, telling parties there's no use in wasting our time if no agreement is possible, but it's persistence nonetheless.
I am tenacious. I don’t give up. I have sat with parties who have claimed they simply don’t see a way to a resolution and said, “Well, we’ll just sit for a while and think more on it.” Most parties are loath to send the mediator packing, so, they sit, and usually think of something, especially if I occasionally throw out an idea.
Patience, not letting them set the time frame . . . I am prepared to spend as much time as necessary, even though parties are impatient and say this is impossible.
I’m persistent as hell; I don’t give up until they throw me out.
I’ve had the experience several times of being confronted by an impasse that seemed impenetrable and somewhat inexplicable, and I’ve kept noodling around the problem, asking odd questions, shooting the breeze, telling stories, listening to stories, being empathetic, being annoying, until suddenly a picture of another, related but different problem has emerged, something that people were not aware of before or knew about but didn’t realize what they knew. When that happens, it seems that a palpable shift of attitude occurs, and, although the rest of the way is not necessarily easy or smooth, the mediation is generally successful in the end.
The other settlement tactics that were mentioned by at least 10 percent of the mediators were:
- (1)
focusing the parties on the consequences of not settling (“I try to give each party — or help them develop for themselves — both a practical and, as appropriate, an emotional context for evaluating the intangible and tangible costs of either continuing or settling the dispute”);
- (2)
pushing the parties toward settlement only at the appropriate moment (“Timing in mediation is critical, and it is the hardest thing to explain. I feel you must have some innate sense of when to push and when to back off.”“In my view, successful mediation resolutions are also driven by a sense of timing. . . . Timing in this context includes knowing when to be more directive than facilitative . . .; knowing when to test the strength of the parties’ resolve; and knowing when to intervene, e.g., presenting a mediator's proposal for resolution”);
- (3)
assisting the parties to understand each other's needs (“I translate between the parties, explain each to the other.”“I try very hard to help people understand a conflict from the perspective of the person with whom they are in conflict, but not by directly telling them what that perspective is. This is achieved through selective questioning”);
- (4)
maintaining an outwardly optimistic attitude toward the likelihood of settlement in order to encourage the parties to keep working on a settlement (“I always convey optimism, until I think they’d benefit from pessimism”).
Discussion
The mediators’ view that achieving rapport — an empathic, trusting relationship with the parties — is a key to mediation success is not without research support. Trust has been found to be an important factor in successful negotiations and conflict management efforts, and to have a direct effect on disputants’ responses to mediators’ attempts to settle disputes (Rousseau et al. 1998). It is thus important to know what factors are important in developing rapport.
The primary technique relied upon by the mediators in developing rapport was empathic listening, in which the mediator: (1) listens carefully to each party's needs and concerns, demonstrating, by frequent interjections, such as “I see,”“I understand,” and “So what you are really saying is . . .,” that he understands those needs and concerns; (2) acknowledges the legitimacy of at least some of those concerns (“OK, I see why you’re concerned about . . .”); and (3) indicates that he will try to help that party to satisfy its needs and concerns — without ever suggesting that he would prefer those needs and concerns over those expressed by the other party (“I’ll do all I can to help you, but of course, we’ll need to take into account the other party's needs and concerns”).2
The literature also suggests that trust can be the result of reputation or the possession of appropriate certification, such as a law degree (Doney et al. 1998); both of these elements were mentioned by some of the respondents. Trust can also flow from shared membership in a social or organizational category.3 Thus, Christopher Moore writes:
[Developing rapport] may be accomplished early in the mediation by identifying common personal experiences such as recreation, travel, children, and associates; by talking about common values; by genuinely affirming one or more of a disputant's attributes or activities; or by demonstrating one's sincerity through behavior (Moore 1996).
Nor is it necessary to limit rapport‐building activities to the early stages of the mediation. There are many “dead spots” in a mediation, such as when one party is engaged in a lengthy private caucus. During those periods, at least with the noncaucusing party, the mediator can engage in the type of small talk referred to by Moore, which can serve to develop a bond between the mediator and the participants.4
The lack of rapport that frequently exists between disputing parties can make the task of achieving rapport with the parties especially difficult for the mediator. Under these circumstances, the mediator must tread carefully in his rapport‐building activities, being careful not to create an impression of bias by appearing to favor one party to be sympathetic to the other. Thus, most mediators limit their rapport‐building activities to those times when they are in private meetings with one party, free from scrutiny by the other (Kolb 1985).
The importance of establishing rapport with the disputing parties does not mean that those tactics intended to move the parties toward a settlement are unimportant. To the contrary, nearly half the mediators stated that one of the key elements contributing to their success was their ability to generate previously unconsidered or insufficiently considered settlement ideas. The mediator may generate these ideas as a result of his experience and/or inherent creativity, but innovative ideas may equally result from careful listening to the parties. In either event, the successful mediator is likely to attribute innovative ideas to the parties because doing so is thought to increase the likelihood that the parties will view the settlement agreement as “theirs” and that they will feel more obliged to abide by it than they would if the settlement was devised by the mediator. An exception is when the idea was conveyed by one party in private and attributing the idea to that party risks triggering reactive devaluation, a rejection of the idea by one party because it came from the other party (Mnookin 1993).
The mediators’ responses also suggest that a successful mediator will be patient and tenacious in encouraging the parties to keep working on a settlement, even though the prospects for success may appear dim. Patience, however, is a virtue only as long as the parties are moving, however glacially, toward a settlement. Some mediators, when they are convinced that one or both parties need prodding to reach a settlement, and there exists no built‐in negotiation deadline, will impose a deadline on the mediation. (“I am only available until Friday noon. After that, you’re on your own.”) If both parties genuinely want an agreement and if they view agreement as less likely without the mediator's involvement, this tactic may create a sense of urgency that will encourage the parties to make whatever concessions are necessary to reach agreement (see Moore 1996). A judicious use of appropriate humor to lessen tensions also appears to be useful in achieving settlement, though some mediators are uncomfortable with their capacity to successfully utilize humor in a tense situation.
To be sure, several of the tactics commonly thought to be part of the mediator's repertoire were either not reported or rarely referred to in the mediators’ responses. Among these were some tactics widely used in an earlier study of mediator behaviors (Carnevale, Lim, and McLaughlin 1989).5 These tactics included:
keep negotiations focused on the issues;
avoid taking sides on important issues in joint sessions;
clarify the needs of the other party;
let everyone blow off steam;
attempt to move one or both parties off a committed position;
help devise a framework for negotiations; and
help establish priorities among the negotiators.
It is likely that the apparent relative insignificance of these tactics in the minds of the experienced mediators in this study, compared to their relatively frequent use by the mediators in the previous study (Carnevale, Lim, and McLaughlin 1989), reflects the fact that the mediators in the present study were not asked to identify all the tactics that they use in mediation, but only the “essential strengths and techniques” that contribute most significantly to their ability to settle disputes. The mediators in this study were also encouraged to provide relatively brief responses. Thus, their failure to set out some of the tactics referred to above — combined with their emphasis on the importance of achieving rapport — does not mean that other tactics are unimportant, but rather that, absent mediator rapport with the parties, it seems that other tactical steps designed to move the parties to settlement are less likely to succeed.
What are the implications for mediator training of this survey's chief finding, that achieving rapport with the parties is a key factor in successful mediation? To answer that question, we must return to the core elements of achieving rapport: the mediator must genuinely care about the needs and concerns of each party, and the mediator must demonstrate this genuine concern.
The first of these elements — the mediator's genuine concern for the needs and concerns of each party — cannot be taught. A teacher can and should emphasize its importance, but whether the mediator will genuinely care can only come from within her personality. Genuine caring cannot be taught; it must be experienced. Several of the experienced mediators pointed out that the mediator's concern for the needs and concerns of the parties must be real; it cannot be faked. One mediator said, “I could not persuade them [that I genuinely care about their problems] if it were not true, and it is true.”
The second element of achieving rapport, demonstrating genuine caring, is, however, primarily a function of empathic listening, and this can be taught through demonstrations and interactive exercises (see Ray and Kestner 2002). Hence, the prospects are bright for training that will improve the rapport‐building capacity of those mediators who genuinely care about the needs and concerns of the parties for whom they mediate.
Conclusion
The best summary of the ideas set out in this article was provided by one of the mediators. She wrote:
I’ve been blessed with great success in terms of settlement rate. It's got to be somewhere in the vicinity of 95 percent. Not getting something settled is extremely rare for me. Why? I’ve tentatively decided that, barring a fatal error such as an idea that really goes awry, the ability to listen, to inspire trust, to be empathetic, and to be able to help people reframe their thinking are really the essence of it. We’re all hungry to learn effective techniques, but the more I think about it the more I think they’re quite secondary. You can know every snazzy technique there is, but probably won’t get very far if you don’t have the [ability to generate trust].
NOTES
I wish to acknowledge Professor Jeanne M. Brett for her sound advice and assistance on every aspect of this article. Thanks are also due to the highly experienced and very busy mediators without whose willingness to take the time to respond to my questions, there would be no article. Finally, thanks to Northwestern University law student and Pritzker Faculty Research Fellow Jammey Kligis for correcting citation errors and inadequacies.
Dispute resolution is not always the parties’ goal. They may want only a clarification of their respective positions; they may seek personal transformation; they may seek improvement of their relationship. Inasmuch, however, as most mediation occurs in the context of disputing parties who seek a resolution of their dispute, achieving that goal is treated as success for purposes of this article.
In one study of mediator behavior, the mediators went beyond acknowledging and empathizing with the parties’ concerns. According to Deborah Kolb, the mediators in that study, “seem[ed] to create a working impression of neutrality by selectively allying themselves with the parties during different phases of the case. . . . In the accounts mediators give to one party of what transpired in meetings with the other party, they often demean opposing members and their positions. . . . They suggest to whichever party they are talking to that they are an ally who shares its views of the other side and can be counted on for support. . . . If all goes well, this selective bias leads to an overall impression of neutrality. If the bias is unmasked, the mediator can become quickly discredited” (Kolb 1985).
“[I]n‐group identity [is] one solution . . . to the dilemma of trust. Common membership in a salient social category can serve as a rule for defining the boundaries of low‐risk interpersonal trust that bypasses the need for personal knowledge. . . . As a consequence of shifting from the personal to the social group level of identity, the individual can adopt a sort of ‘depersonalized trust’ based on category membership alone” (Brewer 1981).
An interesting question is whether establishing rapport is less important for the evaluative mediator who seeks to encourage settlement by predicting the outcome if the dispute is taken to court or arbitration than it is for the mediator who makes no court or arbitration outcome predictions. The responses in this study do not permit an answer to this question but are none‐ theless of interest. Twelve of the respondents were labor–management arbitrators as well as mediators; another respondent was a sitting judge who mediated cases pending in his court. While it is unclear how many of these respondents utilized evaluative techniques in their mediation practices, each of them had the ability and credibility to do so. Nonetheless, twelve of the thirteen referred to establishing rapport as one of their central techniques. The judge, while pointing out the advantage of his judicial office, went on to say that his success in settling disputes was ultimately a function of his ability to gain the parties’ trust and confidence:
[B]eing a judge helps. Although I do not wear a robe, the aura of the courtroom, my chambers, and my judicial office provide me with credibility and a perception of fairness. . . . I [also] believe that I have good people skills. I am able to work with both sides and gain their trust and confidence. This is crucial in maintaining momentum and ultimately providing a recommendation.
The respondents in this study were the 255 members of the Society of Professionals in Dispute Resolution. They were asked to rate the extent to which they had used forty‐three different mediation tactics in their most recently completed mediation.
