Why Two Different Mediation Methods Can Produce The Same Results

With a small group of volunteer mediators, two years ago I participated in a mediation pilot project for TRO (Temporary Restraining Order) cases in Hawaii. In a nutshell, this is how it worked.

Whenever an Honolulu District Court Judge thought that the parties were bound to have a future relationship (for example, because they were neighbors or worked for the same company), he or she would send them to mediation, which:

>> Would take place immediately in a conference room on the same floor of the courtroom
>> Could last max. 60 minutes; otherwise, the parties would appear again before the Judge, who would hear their case and rule on it.

Our pilot project proved to be effective - 40%-50% of TRO cases did settle in mediation -- and two mediators (Roberta and I) had a settlement rate as high as 75%. Sure, it is debatable whether a settlement rate is a good or the only way to measure the success of a court-ordered mediation program. In any event, Roberta and I thought it was a good idea to get together for a cup of coffee, just to share our experiences and hear what each of us did during those 1-hour mediations.

What we found out was as interesting as surprising. We did something completely different. Why? Because the assumptions that each of us made about TRO cases were different and, consequently, the techniques we used were also different. For example:

Roberta assumed that mediation gave both parties a great opportunity to hear each other and, if they wanted, they could find a better way to communicate in the future. As a result, she preferred to meet with both parties in joint sessions (with nobody else in the mediation room).

As for me, I took for granted that when people are sent to mediation after they filed a TRO case in court, not only their main concern is their safety. Most likely, they are also skeptical toward the mediator, because they equate the word "mediation" with "compromise" with the other party -- the very person they blame and distrust. As a result, when I mediated I preferred to meet each party separately and in the presence of whoever else was there with them in the courthouse. Those people (family members, relatives, friends or witnesses) played a pivotal role in making each party feel less tense, and letting them assess as calmly as possible the pros and cons of their two options -- working out a mediated agreement or having a hearing in the courtroom next door.

At the end of our cup of coffee, Roberta and I came to two conclusions.

First, the fact that both our settlement rates were high was not because the way we mediated TRO cases was similar, but simply because each of us truly believed in what we did. Second, we both wished we could do some more research for explaining how two different mediation methods can produce the same results.

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