Mediation research in 2020

Photo copyright 2020 A. Boyle

This month the ADRRN blog focuses on research and is seeking your input about interesting and innovative approaches to studies of mediation.  This post sets the research context by summarising some of the key knowledge gaps and research constraints. Although the blog will focus on mediation, a process that has enjoyed a relatively long research focus, it is likely that there are similar knowledge gaps in relation to other DR processes, and that investigations of them have similar constraints.

Your ideas

Post descriptions of your research projects that have incorporated interesting or innovative approaches.  What was innovative?  How did that affect the whole project and its results?

Knowledge gaps – mediation

Last year, attendees at the National Mediation Conference in Canberra responded to a survey seeking ideas for future mediation research.  Most participants were practicing mediators and the most frequently submitted idea was “to find out what works”: mediators wanted to know more about the mediator skills and techniques that lead to durable agreements.  They also wanted to know which mediator style, or model of practice, is the most effective.  Both of these knowledge gaps are widely recognised.  

Other key knowledge gaps about mediation include a lack of information about mediation outside courts and tribunals and beyond institutional programs and services – in other words, a lack of information about private mediation.  There is also limited information about specialist mediation services such as those for addressing disputes arising from natural disasters or from resource management or from artistic misappropriation.

Very little is known about influences on the mediation process itself and on the role of the mediator, and how those influences might affect what happens during the mediation.  Such influences are likely to include the context and setting of the mediation, the experience and status of the disputants and their advisers, and the experience and status of the mediator.  In addition, despite widespread assumptions about mediator skills, it is not known what mediators actually do (ie their actions and microskills) and what might influence their choice of what to do.  

There are many knowledge gaps in models or styles of mediation practice, such as which mediator actions are typical of each model; how settings and contexts influence the mediator’s choice of model or style; and, among mediators who do apply recognised models of practice, how consistently those models are applied. 

A significant knowledge gap exists about people’s attitudes to conflict and to its management, including responses to “mediation” in Indigenous and other diverse cultural and socio-economic settings.

In some ways, the gaps in what is known about mediation are likely to limit investigations of the process’s effectiveness.

Some constraints on traditional research

Research support and funding

One important constraint on mediation research is the limited funding and support it receives.  Future research innovations are likely to need to be very cost effective if they are to be supported.

Lack of conceptual clarity

It is widely acknowledged in the mediation literature that there is not a clear and consistent understanding of what is meant by the term “mediation”  In addition to the well-reported lack of definitional clarity about mediation, it is not always clear how much of the preliminary work is included when researchers investigate “mediation”; how much of the post-mediation period is included in terms of the delay before implementing an agreement; or how much of a longer time-lag is included that might inform an investigation of mediation’s long-term effectiveness.  Nor is there regular consideration of the duration of a mediation as a component of the process: for example, whether the concept of mediation can include a process that lasts a full day as well as a process that occurs during several sessions convened over separate days, as well as a process that lasts one hour.

There is not consistency or clarity about what constitutes a mediation outcome, what that outcome might contribute to establishing the “effectiveness” of the mediation, and whether a focus on outcomes detracts from consideration of the mediation process itself and what happens within it.  For example, outcomes may be limited to the achievement of an agreement and/or the terms of that agreement, or they might include the disputants’ levels of satisfaction (with the mediation process and/or the mediator and/or the outcomes), or they might include positive changes in the disputants’ communication with each other, or they might include positive changes in the disputants’ relationship with each other, or they might include the matter being removed from a court or tribunal list – or they might include any combination of these. 

Finally, there is not consistency in what constitutes a mediator’s style, or approach, or model of practice.  For example, many investigations of mediator style have been limited to checking that certain key stylistic indicators are reported to have occurred during the mediation, such as “Did the mediator facilitate conversation between the disputants?”  Answering “yes” to the question does not provide information about what the mediator did or about what happened; importantly, it does not provide information about how the researcher chose to interpret the meaning of “facilitate”. 

Representative diversity in research participants

Mediation confidentiality is often cited as a reason for limiting researcher access to the process, including to basic mediation data, and to mediation participants.  These limitations constrain researcher access to a broad sector of the community and prevent their views from informing what is known about mediation.

Researchers recognise that the people who participant in empirical studies tend to be selected from readily accessible sources, including structured mediation programs such as those associated with courts and tribunals.  In most studies, various parts of the population are not differentiated for the purposes of the study.  For example, there is very little differentiation of research data according to socio-economic status, or educational attainment, or sex, or age-groups. 

Data collection and measurement

An additional constraint concerns how key concepts (such as those mentioned above) are to be measured or whether they are even measurable.  For example, it is very difficult to devise a reliable measure for ascertaining levels of disputant satisfaction, or whether the disputants’ communication with each other has improved (either during the mediation or more durably).  There are many aspects of research design that are known to interfere with the reliable collection and measurement of data, including various types of inherent bias (on the part of the participants, the research setting, and the anticipated reporting of the research), and the influence of the researcher’s own experience and preferences.

Research approaches

Mediation research needs some innovative approaches, and over the next couple of weeks, this blog will consider this issue.

Resources

Three articles for further reading about innovative research approaches.  One looks generally at developments in empirical research in the behavioural sciences, and two report on the incorporation of psychometric modelling in surveys distributed in legal settings.

Druckman, D., and W. Donohue, ‘Innovations in Social Science Methodologies: An Overview’ (2020) 64(1) American Behavioral Scientist 3.

Pleasence, P., and N. Balmer, ‘Measuring the Accessibility and Equality of Civil Justice’ (2018) 10 Hague Journal on the Rule of Law 255.

— , ‘Development of a General Legal Confidence Scale: A First Implementation of the Rach Measurement Model in Empirical Legal Studies’ (2019) 16(1) Journal of Empirical Legal Studies 143.

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