New research by Francesca Gino and Ting Zhang of Columbia Business School, along with Mike Norton of Harvard Business School, suggests that the most effective mediation style might be being partial against both parties.
The academics suggest that, contrary to the received wisdom that mediators should be neutral, attentive and empathetic, an actively hostile mediator is more likely to get a good result. They discovered that a mediator’s antagonistic and hostile treatment of both parties causes adversaries to unite against the mediator, which in turn increases the parties’ willingness and propensity to reach agreement.
To arrive at this counter-intuitive result, researchers created situations in which negotiators were part of a heated dispute and gave them the opportunity to meet with a mediator. Some participants faced a ‘nice’ mediator – one who spoke in a friendly tone and asked questions politely. Other participants faced a mediator who was more abrasive, spoke gruffly, and used sarcasm. A third control group of participants faced a mediator with a more emotionally neutral style.
Across different types of conflicts, the research team consistently found that negotiators were more willing and able to reach an agreement with their counterpart in the presence of an antagonistic mediator than in the presence of a nice or neutral mediator.
The researchers believe that the adversaries were more likely to negotiate and settle because they were united against the common enemy: the hostile mediator.
The positive side of pain
The study builds on more general work by Australian academics, which has found that pain can have positive social consequences by acting as social glue that fosters cohesion and solidarity within groups. Pain, it is claimed, produces bonding and cooperation between those who share painful experiences.
The Australian researchers randomly assigned a group of undergraduates to perform either a painful task or a similar, relatively painless task in small groups. The students submerged their hands in a bucket of water and were asked to locate metal balls in the water and place them into a small underwater container. For some, the water was painfully cold; for others, the water was room temperature.
The students then rated statements designed to measure how they felt about their group (e.g., “I feel part of this group of participants” and “I feel a sense of loyalty to the other participants”). The results found that students who performed the painful tasks reported a greater degree of bonding than did those who performed the pain-free versions, even after the researchers weighted for participant age, gender, and the size of the group.
The question arises as to whether undergraduates in a laboratory situation respond in the same way as seasoned negotiators in a commercial mediation. And it is not hard to find anecdotes to suggest otherwise.
Hammer and nail
The late David I Shapiro, for example, was known for a particularly aggressive mediation style, loudly and menacingly cutting ground from under all sides. Among his mediations, in 1989, was a dispute between labour and management of Eastern Air Lines, which ultimately ended in bankruptcy.
The judge had asked for a head banger and Shapiro didn’t disappoint. Post-mediation, one startled representative told The Washington Post, “The only tool he had was a hammer and he treated everything like a nail”.
Another union source, when asked by the same paper if the deal was simply an acceptance of the cards that had been dealt, whimpered: “It was more like accepting the cards that were stuck in our foreheads by Shapiro”. The media loved it and Shapiro was written up as a “boisterous, brawling Brooklyn-born lawyer”.
But, the deal didn’t hold: bankruptcy followed, and 38,000 jobs were lost. The circumstances of the case were ferociously complicated, and it is likely unfair to suggest that Shapiro’s brawling mediation style was responsible for the outcome.
Skills that make a difference
However, it is perhaps worth contrasting this approach with feedback from commercial mediations conducted at JAMS between October 2014 and April 2016. The survey elicited just over 1,500 responses, making it perhaps the largest survey of its kind. Asked, “What particular skills did the mediator possess that made a decisive difference to the outcome?” respondents’ answers fell in the following clusters:
- Persistence; commitment; willingness to continue to assist in negotiations after mediation session
- Robust preparation
- Patient and diplomatic
- Good listener
- Good knowledge and experience with law and facts of the case
- Calm demeanor and ability to defuse heightened emotions
- Focused; straight-forward on the critical issues
- Excellent persuasive and analytical skills. Created a balanced and comfortable environment for discussion
- Ability to communicate effectively with all sides
- Good job of highlighting risks to each side
- Good interpersonal and social negotiating skills; connected well with all parties
While some respondents found evaluative techniques to be instrumental in driving settlement, the results of the JAMS survey would appear to be a strong endorsement of the facilitative style as taught in classrooms worldwide.
Ultimately, of course, no single approach can be considered right or wrong; rather, good mediators temper their approach to the requirements of the case and personalities involved. Mediators, one might suggest, are chameleons, not head-bangers.
Written by Matthew Rushton.
Matthew Rushton is the Deputy Managing Director of JAMS International. He is the founder of Empirical Publishing, an online legal publisher focused on ADR. Matthew was previously the publisher of The Mediator Magazine and later The Mediator Directory, as well as launching an ADR brokerage site, DisputesLoop.com. He is a regular speaker on ADR topics at conferences.