October 2014 Bar Bulletin
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October 2014 Bar Bulletin

Is the Mediator's Recommendation a Trick?

By Fredrick D. Huebner

 

The answer to the question posed in the headline is, well, "Yes." Sort of.

The mediator's recommendation is the most common impasse-buster used by evaluative mediators handling rights-based disputes - in other words, typical private lawsuit mediation. Typically, the mediator will obtain all parties' consent to provide a recommendation, sometimes to deliver at the end of the mediation day, at other times in a formal written statement with supporting data after the parties have had a day or two to "cool off" and, if they wish, provide the mediator with any additional argument or information on a confidential basis.

The mediator considers what he or she has heard and seen from the parties and, sometimes, information obtained from the mediator's own research. The final product usually contains the settlement dollar amount(s) and the barebones, non-monetary terms of settlement.

So, where is the trick? It's in the psychological impact on the parties.

Evaluative/directive mediation1 is just one of many political, legal and administrative processes that depend, at their core, on the notion that good decisions are made by a neutral wise man or woman with subject matter expertise in the problem at hand. This concept is embedded in American government, starting with the notion of a judicial branch that exerts ultimate authority in interpreting the Constitution; through specialized administrative agencies such as the FTC or SEC that adjudicate cases and make rules; to nonpartisan elections for municipal, special (e.g., superintendents of public instruction) or judicial offices.

The success of "wise shaman" political systems is hotly disputed, but the psychological power of the concept to validate a conclusion is very strong. Edward Bernays, the father of modern industrial public relations, created front groups to provide "third-party validation" of the products, services and political ideas his corporate clients wanted to sell. Modern variations include "Astroturf groups" that appear to be organizations of concerned citizens or professionals, but are, in fact, bought-and-paid-for shills.

Third-party validation is why TV doctors sell vitamins, medical researchers give drug talks at doctors' meetings, famous actresses sell face creams, and lawyers and mediators write articles to be published in professional journals: The voice delivering the message lends credibility to the product. So, too, with the mediator's recommendation: Neutrality, experience, subject matter knowledge and gray hair all sell the product - settlement.

Packaging the settlement inside the mediator's recommendation is particularly effective when decision makers (plaintiff class or group members, corporate "business side" officials) have not personally sweated through the mediation and can fix the blame for a compromise they don't like on the seemingly overzealous mediator.


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