Originally from World Arbitration And Mediation Review (WAMR)

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USER PREFERENCES AND MEDIATOR

PRACTICES:
CAN THEY BE RECONCILED WITHIN THE
PARAMETERS SET BY ETHICAL
CONSIDERATIONS
By Edna Sussman*

Recent surveys have shown that users of mediation in
commercial disputes value active and directive techniques in
mediation. It would seem that a large number of such mediation
users want someone who can get the deal done and a great many
of them believe an evaluative mediator, who applies pressure for
resolution, is more successful in achieving this result. The
progressive movement of mediation away from its roots in a more
facilitative or transformative model to an increasingly common
evaluative model in commercial cases raises a host of questions
and concerns. This Article examines the question of what users
really want and whether their wishes can appropriately be
accommodated with current mediation models and practices
within the parameters set by ethical standards. As the American
Bar Association (“ABA”) Dispute Resolution Section noted in its
pamphlet, Improving Civil Litigation (hereinafter “ABA Pamphlet”
or “Pamphlet”), while “there is great value in considering user’s
thoughts and experiences” one should “not equate high quality
mediation practice with what lawyers and parties want.”1

I. EMPIRICAL STUDIES ON MEDIATION SATISFACTION

The American Bar Association Task Force on Improving
Mediation Quality (hereinafter “Task Force”) issued a report in