or participants’ assessments associated with whether
mediation use is voluntary or mandatory, but some studies
find that voluntary use of mediation is associated with
more favorable outcomes.TThhiirrdd--PPaarrttyy CChhaarraacctteerriissttiiccss
A majority of studies find that when the mediator
or neutral evaluator plays a more active role during the
session in helping disputants identify issues and
options, settlement is more likely and disputants have
more favorable assessments of the process. Mediator
actions associated with these positive outcomes include
actively structuring the process, getting disputants to
express their views and to assess different options, and
providing their own views about the disputants’ posi-
tions and proposals. If the mediator recommends a spe-
cific settlement, however, disputants are more likely to
settle but less likely to view the mediation process
as fair. Only a few studies have examined whether
the third party’s general approach or specific actions
appear to be differentially effective in different types of
disputes. These studies show, for instance, that some
mediator approaches that are effective in resolving less
intense conflicts are not effective in resolving more
intense conflicts and some approaches that are effective
in divorce cases are not effective in general civil cases.
Greater third-party familiarity with the substantive
issues in the case is related to lawyers’ viewing the
arbitration process and decision as more fair. In medi-
ation, the third party’s substantive expertise is not
related to settlement or to disputants’ or lawyers’ assess-
ments. How well the mediator understood the dis-
putants’ views, however, is related to their assessments.
Disputants’ and lawyers’ perceptions that the third party
was not biased and was prepared for the session are
associated with favorable assessments of the process
and outcome of all ADR processes.DDiissppuuttee aanndd DDiissppuuttaanntt CChhaarraacctteerriissttiiccss
Research examining which dispute and disputant
characteristics are associated with better outcomes has
been conducted primarily on the mediation process. The
contentiousness of the disputants’ relationship impedes
settlement in divorce and community mediation but
not in general civil and small claims mediation, which
involves few intimate or ongoing relationships. In addi-
tion, divorcing couples with a more contentious
relationship are more likely to be dissatisfied with the
settlement, remain bitter, and bring subsequent lawsuits.Across mediation settings, other indicators of more
intense conflicts, such as poor communication, greater
disparity in the disputants’ positions, and the denial of
liability, also are associated with a lower likelihood of
settlement.
Not surprisingly, the greater the disputants’ motiva-
tion to settle and the less disparity between the dis-
putants in that motivation, the more likely they are
to settle. Disputants who misunderstand the goals of
mediation or whose goals are inconsistent with those
of mediation are less satisfied and less likely to settle.
Similarly, lawyers whose expectations about how the
neutral case evaluation session will be conducted are
closer to the approach actually used are more satisfied
with the process. Disputants who are better prepared
for mediation by their lawyers tend to be more likely
to settle and to feel that the process is fair, perhaps
because preparation modifies their expectations or their
actions during the session.
Few studies have examined how antecedent dispute
characteristics affect what goes on during the mediation
session and how that, in turn, affects outcomes. These
studies find that disputants who have a less contentious
relationship or who are more motivated to settle are more
likely to be cooperative and to engage in productive joint
problem solving during mediation. These behaviors, in
turn, are associated with disputants being more likely to
settle, view the mediation process and outcome as fair,
and report improved relationships. More active disputant
participation during mediation also is associated with
more favorable outcomes. The few studies that have
examined lawyers’ impact on mediation suggest that
how cooperative the lawyers are during the session is
related to settlement and to disputants’ assessments of
the process.
The research findings are mixed with regard to
whether or not there is a relationship between settle-
ment and dispute complexity, which has been defined
in different studies as the number of disputants, the
number of disputed issues, or the complexity of the
issues in dispute. A majority of mediation studies find
that legal case type categories (e.g., tort, contract) and
the size of the monetary claim are not related to settle-
ment or to disputants’ assessments of mediation. A
majority of arbitration studies, however, find that dis-
putants are more likely to appeal the arbitrator’s deci-
sion in cases involving larger dollar claims and in tort
rather than contract cases.
Roselle L. WisslerSee also Legal Negotiation; Procedural Justice18 ———Alternative Dispute ResolutionA-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 18