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June 1, 2022

In Praise of Mediation Observers

By David Hoffman

Like many mediators, I am asked from time to time by mediators-in-training whether they might observe one of my mediations.  I invariably say “yes,” and they sit in on one or two mediations from start to finish.  I consistently hear from them that the experience is valuable, and some say invaluable.  But I am here to make a different point – namely, that having mediation observers is at least as valuable for me, for three reasons.

First, people behave differently when they are observed – a phenomenon known as the “Hawthorne Effect.”  That is certainly true for me – I think I am probably more focused because a part of me wants to impress the observer.  I also think the parties and counsel may be at their best: they might feel some responsibility for showing the observer what effective negotiation looks like.  I have also noticed a higher level of civility when an observer is present.

Second, mediation observers notice things that I may have missed.  When I am shuttling between caucus rooms, or just taking a break, I find it tremendously helpful to ask for the observer’s impressions.  And, after the mediation is over, I have found enormous value in debriefing the case with the observer – I learn as much from their questions as their observations.

Third, I believe that the mere presence of an observer enhances my credibility as a mediator, especially when I am engaged in shuttle diplomacy.  For example, when I am in one of the caucus rooms, I am keenly aware that the parties and counsel are sizing me up – trying to figure out how much they can trust my account of the other side’s perspectives and positions.  If we are in the late stages of a mediation, and I sense that the parties would welcome hearing from the observer, I will sometimes turn to the observer in the middle of a caucus and ask them if they agree with my account of the other side’s views.  In my experience, the observer almost invariably agrees.  Moreover, even if I don’t invite comment from the observer, I believe their presence throughout the mediation enhances my credibility because the parties implicitly assume that I would not lie in the presence of the observer.  (Hopefully, they believe I wouldn’t lie to them even if no observer was present!)  From the standpoint of the parties and counsel, the observer is there to learn best practices, and they probably infer from that premise that the mediator will strive for the highest level of ethical practice (which includes honesty, at a minimum) since the observer is looking to the mediator as a model.

I have never done a precise calculation of whether my settlement rate is higher when observers are present, but I believe that to be the case.  But even if that is not the case, I encourage mediators to invite observers – with the permission, of course, of the parties and counsel and a signed non-disclosure agreement from the observer – to help newly-minted mediators learn the ropes.  Unlike some professions (including law and medicine), in which trainees spend much of their time watching seasoned practitioners handle actual cases, mediation training involves mostly simulations and role plays.  Watching real-life, real-time mediation – and hopefully observing a wide range of different mediators and their unique styles – is, in my opinion, one of the best ways to learn.

And here’s an additional point: mediation observers can add value for the parties.  This is an observation shared with me by one of my mediation observers, Susan Halevi, Esq. – namely that the presence of the observer may “augment the parties’ experience of feeling seen and heard, without their day in court.  Even sitting in silence, the observer contributes their presence.”

* * * * *

There may be occupations in which an experienced practitioner might be reluctant to train someone who will be competing with them for business, but in my experience, mediation is not one of them.  There is all too much unresolved conflict in the world.  We need more mediators.

And for those colleagues of mine who might feel nervous about being observed, I encourage you to reframe the experience as one in which you have the opportunity not only to learn but also – for the reasons described above – become even more effective as a peacemaker.

I am grateful to all of the observers who have watched me mediate over the years – I know that my work has benefited from their presence.

[This blog post is adapted from an article appearing this month in Alternatives to the High Cost of Litigation.  The longer version is available here – copyright © 2022 International Institute for Conflict Prevention & Resolution.]

 

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