Analytical Mediation

An informative session at the ABA Meeting in late July introduced a term I’d not heard before, consisting of a bundle of familiar but elegant techniques.  “Analytical Mediation” seems to be the moniker for my Dad’s admonition: “Do It Right The First Time!”

The panel comprised John Bickerman, Lela Love and Wayne Thorpe — three heavy-hitters, each of whom is about as sophisticated a practitioner as one could imagine.  Mr. Thorpe explained that the idea arose from the Final Report of the ABA Task Force on Mediator Quality, and indeed it seems to encapsulate some of the very best mediator practices.

John Bickerman explained that the “Analytical Mediator” transcends the familiar polar extremes of “facilitation” and “evaluation.”  Instead, she analyzes the problem and the participants, and has at her disposal a wealth of perceptions and tools to assist the disputants and their counsel, as may be dictated by the circumstances.

According to the helpful materials handed out at the sessions, the ultimate focus is on the needs of the parties.  In an effort to support the participants’ search for a satisfactory resolution, the mediator may use listening, reflecting, reframing, providing information, offering suggestions, persuading, and, with informed consent (a term further discussed by Lela Love), even proposing solutions.  Perhaps the distinguishing aspect is this last one: the mediator’s willingness, under certain circumstances, to offer his analysis and opinion to the parties.

Analytical mediators are encouraged to customize the mediation process to the particular dispute and parties, and to focus on legal issues to the extent that those issues are blocking resolution.  They actively assist parties to analyze options and interests, and to consider alternatives to a negotiated agreement — emphasizing these concerns perhaps more than mediators practicing in other frameworks.

In an article distributed at the session, John Bickerman writes: “To be maximally effective and give true meaning to party autonomy, a mediator must diagnose the reasons for negotiations to fail and gauge the amount of intervention accordingly.  Perception, intuition, flexibility and adaptability are the touchstones of this approach.  With care, the mediator will do just enough.”

Well, you can’t argue with that, can you?  Though I think that, in the end, this is a matter of “reverse engineering” rather than predictive methodology.  John is a mediator of extraordinary perception, intuition, flexibility and adaptability, and is one of the most successful mediators of complex disputes in the world.  When you ask what makes up a successful mediator of complex disputes, it is no surprise to find these attributes coming to the forefront. 

Now, then, where can the rest of us get some of that pie…?

  1. I concur with my friends Vickie and Eric. If we aren’t being analytical then I don’t see how we can be effective. However, there is a divergence of opinion among lawyers about how far we ought to go. I have had one lawyer tell me during a recent seminar not to talk to him about the weaknesses in his case because he already knows what they are. The implication was that I would be disrespecting him. Another lawyer said that the mediator should not evaluate his case because that is the lawyer’s job. Part of customizing the process requires ascertaining how much of our analytical input is welcome, and what kind of input.

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