Mediator Settlement Strategies

TLDR

Mediators confront a difficult settlement task because disputes are highly contested and only reach mediation after court involvement. Mediators deploy four main strategy categories—self‑presentation, process control, issue control, and commitment activation—using authority claims or situational manipulation to increase settlement likelihood. Across 175 sessions with 40 mediators, similar strategies were observed, and mediator styles span a continuum from bargaining to therapy, with settlement achieved through strategic use of power.

Abstract

Settling cases poses a challenging task for the mediator. Most disputes are hotly contested by both parties or they would not have progressed to the point of entering the court arena or mediation. Yet, despite differences in the nature of their cases, the organization of each program we have studied, and the style of mediation predominating in each, striking similarities exist in the techniques used by the mediators to settle cases. Observation of over 40 different mediators in 175 mediation sessions in three programs suggests that in order to do the job which they are charged with accomplishing—bringing mediation cases to settlement— mediators develop a repertoire of strategies employing a variety of sources of power. Mediator strategies fall into four principal categories: presentation of self and the program, control of the process of mediation, control of the substantive issues in mediation, and activation of commitments and norms. Mediators empower themselves by claiming authority for themselves, their task, or the program based upon values external to the immediate situation, or manipulate the immediate situation so that settlement is more rather than less likely. Based upon their differential use of these strategies, mediator styles fall along a continuum between two types: bargaining and therapy. Mediation seems to range between a bargaining process conducted in the shadow of the court to a communication process which resembles therapy in its focus upon exploring and enunciating feelings .