Dr. McDermott wrote the survey used in this study with assistance from Drs. Jose, Obar, and Dr. Mollie Bowers, a co-author on our first study. Drs. Polkinghorn and McDermott coded all data in this report. Students, under the close supervision of Drs. Obar and Jose, entered the data. Drs. Obar and Jose also performed quantitative data runs. Drs. Jose, McDermott, Polkinghorn, and Obar wrote the report (in order of editorial contribution).

We would like to thank our student assistants Susan Frank and Lubomira Spassova for their assistance in with the data entry. While so many at the EEOC have provided assistance we would like to especially thank the following people: Ida Castro, Chairwoman of the EEOC during this research project; Commissioner Paul Miller; Paul Richard, Special Assistant to Commissioner Miller; Elizabeth Thornton Director of Field Programs; Paula Choate, Director Field Coordination Programs; Irene Hill, Attorney Advisor; and Sharon Bowers, Operations and Policy Specialist. Our key EEOC contact, Steve Ichniowski, National ADR Coordinator, was of invaluable assistance. Also, this second project could not have gotten off of the ground without the timely support from Robert Jackson, of the EEOC Training Division. Tulio Diaz, Director of the Washington Field Office, and Mary O?Melveny (Special Counsel, Litigation, Communications Workers of America) were early internal advocates for the use of mediation at the EEOC and we would like to recognize their contribution to our field.

Finally, we thank Janet Dudley-Eshbach, President of Salisbury University, her administration, and the Perdue School of Business for their support for this research conducted under the auspices of the Center for Conflict Resolution at Salisbury University.

I. Introduction

This is the second of two research reports on the evaluation of the EEOC Mediation Program. The first report is entitled An Evaluation of the Equal Employment Opportunity Commission Mediation Program (EEOC Order No. 9/09/00/7632/2; www.eeoc.gov). This first report examines the program from the charging party and respondent perspective with regard to their satisfaction with the EEOC mediation process. This second evaluation report focuses exclusively on the observations, opinions, knowledge, and attitudes of the mediators.

This report presents mediator feedback on the dynamics of the mediation process, including the participant (charging party, respondent, mediator) conduct that facilitates resolution of the dispute^¹, why the dispute was not resolved, mediator tactics, behavior that acts as a barrier to a resolution, the role of legal counsel and other representatives, and the turning point(s) in a successful mediation. Mediator evaluations of the skills of the parties' legal and non-legal representatives are also highlighted in the report. The report also focuses on mediator suggestions regarding process improvements. The report ends with sections on "conclusions" and "implications" which discuss the conclusions of this research endeavor and their implications.

The content of this report is the presentation of the results of 2062 mediator surveys, the overwhelming majority of which provides rich and descriptive qualitative data. It is unique because it reports the feedback from mediators, who have been given wide latitude in a largely open ended survey to discuss their opinions and thoughts on the conduct of the parties.

A conscientious effort has been made by the research team to protect the integrity of the data. Almost every mediator survey has been team coded by the same two researchers (Drs. McDermott and Polkinghorn). Such a time consuming protocol is necessary to ensure that the coders can immediately gain feedback and double check with each other on the development of codes and to discuss interesting and intriguing comments. This process also ensures that the coding is done by members of the team who are not only familiar with qualitative research, but who are also practitioners in dispute resolution (mediator and employment law litigator). The data entry and manipulation are primarily performed in tandem by the other two team members (Drs. Obar and Jose) with help from student assistants. By entering the data together the team is able to reinforce the integrity of the data. The two team members coordinate all the data runs together, firstly to rectify the data set, looking for missing or miscoded data and secondly to examine the data runs simultaneously, checking for any questionable or unexpected results. This research protocol contributes greatly to the reliability and validity of the data.

The researchers appreciate the conscientious efforts made by the mediators in answering all the questions thoroughly and thank them for patiently dedicating their time in doing so.

The data presented in this report is only the "tip of the iceberg" of the comprehensive and rich database. Further data analyses will be performed to explore many aspects of the mediation process.

II. Research Methodology

A. The Subjects and Sampling Technique

The participants in this study include all mediators who conducted a mediation session for the EEOC under the supervision of the 50 EEOC field offices, from about March 1 to July 31, 2000. The sampling technique is to capture all mediations conducted during this period so that the profile of the sample is the same as the profile of the overall population of the EEOC cases. The results from the first study verify that this sample is completely consistent with the overall profile of EEOC mediations. (See: An Evaluation of the Equal Employment Opportunity Commission Mediation Program)

The raw data set is 2062 useful mediator surveys. Only a handful of surveys have been deemed to be invalid or useless; this assures the researchers that the mediators have taken the research endeavor seriously. In many instances, a mediator conducted several mediations and conscientiously filled out the survey for each of these mediations. This reinforces the researchers' assumption that all of the mediations provide a unique glimpse into the conduct of the parties, the dynamics of the process, and the mediators' opinions on the resulting outcome. This also suggests that the mediators deem each mediation session to be unique.

B. Research Protocol

The integrity of the data is predicated on the research protocol. The research protocol requires the mediators to complete the surveys at the end of each mediation session and then place the completed survey in an envelope, seal it and forward it to their local ADR coordinator. The coordinator for each office then forwards the packages to the researcher team. Anecdotal evidence suggests that in a few cases the protocol has not been strictly followed; for example, the envelopes were not sealed or the mediators filled out the survey in front of the participants. The research team does not consider these breaches to have had a measurable impact on the overall data set.

C. The Survey Instrument

The survey is titled "Mediator-Results Survey," and is designed to measure mediators' perceptions of the parties, dynamics of the process, and the variety of outcomes that may result. The survey has 11 significant questions. Some of these main questions include subparts. The first set of questions address the characteristics of the mediation. The remaining questions seek information from the mediator regarding the conduct of the parties at mediation, the resolution status of the mediation, participant actions that contribute to or interfere with the resolution of the dispute, mediator tactics used to resolve a dispute, what the mediator would have done differently in those mediations where the dispute was not resolved, the skills of the parties' legal and non-legal representatives, barriers to the resolution of the dispute, turning points in the mediation, and process improvement suggestions. With the exception of the questions pertaining to the characteristics of the mediation session and the skills of the representatives, all the other questions are open-ended. (Please refer to Appendix A for the survey questionnaire.)

The open-ended questions are designed to maximize mediator feedback. As a result, the mediators have provided a wide range of personal opinions, insights, comments and ideas within their answers that expose numerous non-obvious patterns that would not have been discovered if the survey utilized closed ended questions.

D. Data Coding and Analysis

Each mediator is asked to complete the questionnaire for every one of his/her mediations. The data from the open-ended questions are team coded by Drs. McDermott and Polkinghorn. In order to ensure greater inter-rater or inter-coder reliability, the coders worked side-by-side throughout the seven months of the coding process. This part of the process involved hundreds of hours of coding. Each survey has to be read in its entirety and in many cases by both coders. The subjectivity of attributing cause and effect for each survey requires the coders to discuss many of the surveys individually. In some cases it requires both the coders to read a survey, write down a set of ideas or working codes, and then debate the interpretation until a consensus is reached on the most probable intent of the mediator. In the majority of cases the mediator has been extremely articulate and clear in providing answers, thus making the interpretation of the data simpler and less subjective.

For two questions the coders have also entered their opinions regarding whether the mediator is attributing the failure to resolve the mediation to either the charging party or the respondent, their representative(s), or to some other discernable reasons. The main rationale for this process is that mediators, as professional neutrals, are often not comfortable identifying a particular party as the cause of the lack of resolution of the dispute. After a thorough read of the survey the coders determine which party or parties caused the mediation to stall or fail. Thus, through the coders, an attempt is made to provide some additional perspective on which party interfered with resolution.^²

The following data analyses are presented as summary statistics, such as frequencies, percentages, and averages (means). In addition, in order to provide a rich descriptive example of the data patterns that are quantitatively presented, a number of qualitative data entries are used throughout the report.

III. Results

A. Characteristics of the Mediator and Mediation Session

Mediators are asked whether this is the first mediation between the parties, the number of times the parties had met before, if at all, whether the mediation was held over consecutive days, the time spent in any prior mediations, and the time spent in that prior session or sessions. The remainder of the survey elicits information, which is solely based on the mediation that took place on the day that the survey was executed. The researchers did not try to follow any mediation through to completion. Rather, we are using a "snap shot" approach to focus on the mediation. This is justified for cost reasons and because our focus in this study is on the immediate feedback from mediators concerning the participants, the process dynamics, and the outcome of this one mediation session. Recording the mediator's perspective at the time of the mediation is therefore required.^³

During the early administration period of the survey a change was made to one of the threshold questions. We added a question in the survey to identify whether the person is an EEOC staff mediator, a contract mediator or a pro bono mediator. As shown in Table I, of the 2062 cases^⁴ where mediators provide feedback, 1660 cases (81%) provide information regarding the mediator type, of which the vast majority (80%) identify themselves as EEOC staff mediators. Mediators in the rest of the cases are either contract mediators (9%) or pro bono mediators (11%). Mediators in 402 cases (20%) did not provide information regarding the mediator type.^⁵

Table I
Mediator Type

Responses	Frequencies	Percentages
Information Provided
EEOC Staff Mediator	1329	80.0%
Pro Bono Mediator	188	11.3%
Contract Mediator	143	8.6%
Total Responses	1660	100%

No Information Provided	402	19.5%

Grand Total	2062	100.0%
Total Responses as the Percentage of Grand Total	N/A	80.5%

Mediators are then asked to identify the type of mediation session. As indicated in Table II, the vast majority of the cases (97%) involve the mediator's initial session with the parties. A few mediators (55 cases, 3%) report that they had pre-mediated this case before coming to the present session. This 3% subset of mediators are further questioned regarding the number of times they have met before, the length of the session on these prior meetings, and whether these prior meetings were held on consecutive days. When asked to identify how many times they met before, mediators in 24 cases (67%) report that they met once, while mediators in 10 cases (27%) indicate that they met two times. Mediators in 19 cases (35%) did not answer this question. (See Tables III and IV.)

Table II
Initial Or Ongoing Mediation

Responses	Frequencies	Percentages
Initial Session	1968	97.3%
Not Initial Session	55	2.7%
Total Responses	2023	100.0%

No Information Provided	39	1.9%

Grand Total	2062	100.0%
Total Responses as the Percentage of Grand Total	N/A	98.1%

Table III
The Number of Prior Mediation Days

Responses	Frequencies	Percentages
One	24	66.7%
Two	10	27.2%
Three	1	2.8%
More than Three	1	2.8%
Total Responses	36	100.0%

No Information Provided	19	34.5%

Grand Total	55	100.0%
Total Responses as the Percentage of Grand Total	N/A	65.5%

Table IV
Length of Time of the Mediation Sessions on Prior Mediation Days

Responses	Frequencies	Percentages
Up to 1 Hour	3	8.6%
1-2 Hours	4	11.4%
2-3 Hours	6	17.1%
3-4 Hours	12	34.3%
4-5 Hours	2	5.7%
5-6 Hours	4	11.4%
6-7 Hours	1	2.9%
7-8 Hours	2	5.7%
8 + Hours	1	2.9%
Total Responses	35	100.0%

No Information Provided	20	36.4%

Grand Total	55	100.0%
Total Responses as a Percentage of the Grand Total	N/A	63.3%

Average = 4

As indicated in Table V, mediators in 35 of the 55 cases who conduct prior sessions with the parties provide information regarding whether the sessions are held on consecutive days. Of this group, the vast majority (mediators in 32 cases, 91%) report that the sessions are not held on consecutive days.

Table V
Were Prior Mediation Sessions Held On Consecutive Days?

Responses	Frequencies	Percentages
Yes	3	8.6%
No	32	91.4%
Total Responses	35	100.0%

No Information Provided	20	36.4%

Grand Total	55	100.0%
Total Responses as a Percentage of the Grand Total	N/A	63.6%

Mediators are also asked to report the duration of the mediation session. The vast majority (85%) lasted five hours or less. Sessions of five hours or less in duration are measured in one hour intervals of 1-2 hours (15%), 2-3 hours (30%), 3-4 hours (24%), or 4-5 hours (13%). The average length of time for the mediations is 3.66 hours. This information is presented in Table VI.

Table VI
Length of Time of the Mediation Session on the Day of Survey

Responses	Frequencies	Percentages
Up to 1 Hour	58	2.9%
1-2 Hours	304	15.2 %
2-3 Hours	603	30.1 %
3-4 Hours	474	23.7 %
4-5 Hours	253	12.6%
5-6 Hours	160	8.0%
6-7 Hours	79	3.9%
7-8 Hours	48	2.4 %
8-9 Hours	15	0.8%
9-10 Hours	5	0.3%
10+ Hours	3	0.2%
Total Responses	2002	100.0%

No Information Provided	60	2.9%

Grand Total	2062	100.0%
Total Responses as a Percentage of the Grand Total	N/A	97.1%

Average = 3.66

In summary, the majority of the mediators surveyed are EEOC staff mediators.^⁶ The majority of the mediation sessions are the first between the parties and the average length of the session is 3.66 hours. The next section presents mediator feedback regarding the resolution status of the disputes.

B. Dispute Resolution Status

Of the 2062 cases studied, 1223 (60%) reached a resolution while 811 (40%) were not resolved by the end of the surveyed session. Information about the resolution status is not available for 28 cases (1%). Table VII presents this information.

Table VII
Resolution Status of the Dispute

Responses	Frequencies	Percentages
Resolved	1223	60.1%
Not Resolved	811	39.9%
Total Responses	2034	100.0%

No Information Provided	28	1.4%

Grand Total	2062	100.0%
Total Responses as a Percentage of the Grand Total	N/A	98.6%

C. Participant Conduct that Contributes to Resolution of the Dispute

Detailed questions elicit descriptive accounts concerning the behavior of the participants that help to facilitate the resolution of the dispute. Specifically, the survey inquires about the conduct of the charging parties, charging parties' lawyer or representative, respondents, and respondents' lawyer or representative. Mediators are also asked to identify their own conduct that they think contributes to the resolution of the dispute.

For each of the four possible parties present (charging party, charging party attorney or other representative, respondent, and respondent attorney or other representative) the mediator is asked, "If the dispute was resolved, describe the conduct you believe facilitated the resolution by (the particular party)." The mediator then identified the conduct of each of the parties present.^⁷

1. Charging Party Conduct that Facilitates Resolution

For charging parties, the number one behavioral attribute that contributes to the resolution of the dispute is their flexibility and openness. This flexibility and openness involves a wide range of actions and behaviors described by the mediators as honesty, flexibility, openness, realism, straightforward dealing, good problem solving skills, taking some responsibility for the dispute and other similar types of behavior. It may be that those who either have a good substantive case or who have confidence in their abilities are able to act in a more open and flexible manner. Another interpretation may be that the relationship of the charging party to the respondent is sufficiently strong, which may aid in the charging party's ability to be open and flexible. In some of the cases it appears that the mediators think flexibility and openness can be attributed to the character and disposition of one or more parties. In other instances flexibility is manifested in the desire to be creative and crafty in approaching the challenge and constructing a solution. This particular interpretation is indicative of someone who is process savvy, knows how problem solving and decision making processes operate, or has some knowledge of how to incorporate others' ideas and needs to search for the common ground on the issues being discussed. In 56% of the cases that are resolved, the mediators report behavior that we classify under this category.

The next behavioral attribute that facilitates settlement is the charging parties' focus and preparation (12%). The observations within this category include knowing what one wanted, staying focused,being prepared, and command of the facts. Being prepared may not only help the parties consider the strengths and weaknesses of each person's case, but also help them consider the common ground where compromise may be found. The attribute of "being focused" demonstrates how serious the charging party is, which is important to note given the finding in the first study that indicates that the charging party relies heavily on the mediator for assistance in process and outcome questions. An example of a typical response to the code "focused and prepared" looks like this: "Charging party was experienced and knew what she wanted and could accept. She didn't let the fact that the respondent had an attorney scare her."

Charging parties' need for closure (7%) and their willingness to listen to their lawyer (7%) also contribute to the resolution of the dispute. The need for closure may be indicative of emotional fatigue, process fatigue and/or a controlling desire to conclude the process and move on with one's life, possibly without regard to the quality of the outcome. This need is important to recognize since it may pose a dilemma to the extent that it interferes with a party's ability to vindicate their rights under the law. An example of a typical data entry for the code "need for closure" looks something like this: "Had a desire to let go of issues after venting the concerns."

The willingness to listen to ones' lawyer suggests two conclusions. The first is the implicit understanding that mediation, in this case, is a supplement to the legal process. This implies that EEOC mediation is an arena whereby rights based disputes are being translated into interest based discussions. The coders also note that this code implies that the charging parties acknowledge their attorney as a stabilizing factor within the process.

2. Charging Party Representative Conduct that Facilitates Resolution

Charging parties' representatives (legal and non-legal) may also contribute to the resolution of the dispute by engaging in a wide range of conduct, strategies and tactics that are conducive to resolution. In many cases representatives act as a reality check (9% of the cases), are flexible and compromising (7%) and engage in conduct that is coded as expression or conduct that established commitment to resolution (2%). Reality checking is an excellent way to compare what the charging party wants and can legitimately expect to get from mediation or any other decision making process. Any good counselor realizes that providing a check on the probability of success for a given course is the main task that levels or matches the charging parties' aspirations to the most likely set of expectations. Reality checks include providing hypothetical scenarios and an honest examination of the probability of success of a given decision making route. The code "flexible and compromising" has a number of properties, the most notable being able and willing to incorporate others' wants, demands, desires or needs into the crafting of the solution. The code "expression of conduct that established commitment to resolution" is rather large and can be sub-coded to tease out subtle patterns. However, for the most part, this code houses data instances that demonstrate the willingness of the representative to overtly state the desire to work together with the respondent and mediator to work out a solution. In many instances this is indicative of an expression of coming to the table in good faith.

Charging party representatives are supportive of their client (3%), listened (2%), and engaged in creative problem solving (1%). These three codes, when combined, verify a simple observation that support of the client, effective communication, and problem solving go a long way to helping the charging party and the respondent create a solution.

The demeanor (5%) of the advocates, such as calm and professional behavior, and preparation/advocacy skills (6%) also help in the resolution of the dispute. The main properties of these codes focus on the seriousness and professional conduct of the representative. As we will see in a later section, a main reason for failure is the exact opposite set of behaviors and traits.

3. Respondent Conduct that Facilitates Resolution

The category of flexibility and openness contains the largest amount of observed behaviors contributing to resolution (27%). These behaviors are mainly descriptions of positions or conduct at the mediation, such as a willingness to negotiate and/or to explore settlement options, act in good faith, flexibility, expression of a desire to keep the charging party as an employee, and other such conduct.

Another act by the respondents that helps to resolve the case is the expression of a commitment to the resolution of the dispute (17%). This includes the need to resolve the dispute that very day, a desire to avoid an EEOC investigation, the expressed desire for the charging party to leave having saved face or leave feeling the problem has been solved, and even the private admission of liability to the mediator.

We also identify behavior that falls under the category of good mediation skills (16%). This category involves the identification of mediation specific skills, such as the ability to communicate, sincerity, patience, and the willingness to share information. A good example of this code from the data is "A willingness to involve the Company in the mediation process. Openness in discussion leading to a resolution."

We find that 13% of the cases are resolved by apology/admission/remorse,empathy, or recognizing the charging party's concerns. Expression of apology/admission/ remorse by the respondent is important for resolution. Three percent apologized, expressed remorse or engaged in apologetic conduct. This contrition is usually attributed by the mediator as an important reason for resolution of the dispute. An example from the data is: "Apologized up front."

A related respondent behavior is the expression of empathy. In 5% of the cases, showing concerns for the charging parties' feeling contributed to resolution of the dispute. Close to empathy, but coded as a separate observation, is the conduct of addressing and/or understanding the charging parties' concerns (5%). Thus, in 1 of 10 cases either expressing empathy or showing that one understands the charging party concerns results in a resolution of the dispute.

Other respondent behavior that contribute to the resolution of the dispute includes listening (10%) and direct communication avoiding taking a position and/or the facts of the case (3%). These codes are indicative of a person who can effectively communicate and understands the distinction between an interest based discussion and a positional based debate.

4. Respondent Representative Conduct that Facilitates Resolution

Mediator perceptions of the conduct of the respondents' representative that facilitate resolution include conduct that we categorize as demeanor elements (14%). This includes a number of descriptive characteristics, such as being calm, knowledgeable, persuasive or attentive. Expression of a commitment to resolution is the second largest group of behaviors by representatives that contributed to the resolution of the dispute (10%). Next we find flexibility/ willingness to compromise (7%) and the mediation skills of the representatives (7%).

The respondents' representative also engages in conduct directed at the client which we categorize as client convincing conduct (5%), that includes educating the client and reality checking. Focusing conduct (4%) is, among other things, the act of helping the client understand developments as the process continues as well as getting the client to concentrate and prioritize items, ideas or options. Also important is the expression of respect for the charging party (3%). An example from this code is "Respondent's attorney was non-adversarial and responded to CP in a very positive, encouraging manner." The information regarding participant conduct that facilitated mediation is summarized in Table VIII.

Table VIII
Charging Party, Respondent, and their Representative Conduct that Facilitates the Resolution of the Dispute

Responses	Frequencies	Percentages*
Charging Party
Flexibility and Openness	687	56.2%
Focus and Preparation	143	11.7%
Need for Closure	82	6.7%
Willingness to Listen to Lawyer	79	6.5%
Total for Charging Party	991	81.0%

Charging Party's Lawyer And Representative
Strategy and Tactics
"Reality Check"	108	8.8%
Flexible and Compromising	79	6.5%
Supportive	42	3.4%
Expression or Conduct that Established Commitment to Resolution	29	2.4%
Listened	23	1.9%
Engaged in Creative Problem- Solving	14	1.2%
Preparation/Advocacy Skills	72	5.9%
Demeanor	57	4.7%
Other	5	0.4%
Total for Charging Party's Lawyer & Representative	429	35.2%

Respondent
Flexibility and Openness	327	26.7%
Expression of a Commitment to the Resolution of the Dispute	202	16.5%
Good Mediation Skills	192	15.7%
Apology/Admission/Remorse, Empathy, or Recognizing the Charging Party's Concerns	157	12.8%
Listening to Mediator & Charging Party	125	10.2%
Direct Communication Avoiding Taking a Position and/or the Facts of the Case	32	2.6%
Total For Respondents	1035	84.6%

Respondent's Representative
Demeanor	165	13.5%
Expression of a Commitment to Resolution	121	9.9%
Flexibility/Willingness to Compromise	87	7.1%
Good Mediation Skills	80	6.5%
Client Convincing Conduct	55	4.5%
Focusing Conduct	43	3.5%
Expression of Respect to CP	37	3.0%
Other	16	1.3%
Total for Respondent's Lawyer & Representative	604	49.4%

Total Cases Resolved	1223	100.0%

^{Note: Total number of resolved cases is 1223. Since some mediators have given multiple responses, the total number of responses differs from actual number of resolved cases. The percentage given is a function of the resolved cases and not of the responses or participants.}

5. Mediator Conduct that Facilitates Resolution

As shown in Table IX, mediators describe at length their own conduct that facilitates the resolution of the dispute. Not surprisingly, mediators offer a large amount of data to the inquiry, which might be due to the fact that they can reflect more on their own behavior than on the behavior of other parties. It might also be the only opportunity for them to express their ideas on how they have positively impacted the dynamics of the process and the resultant outcome. The survey is designed so that the mediators are asked two separate but closely related questions in an attempt to identify any conduct or tactics they use. The first question asks the mediators to identify the conduct that they engaged in to facilitate resolution. The second question asks them to identify any particular mediation tactics they use to resolve the dispute. This research design provides the potential for redundancy so that we capture the maximum mediator feedback on their conduct and tactics that promote a solution. Thus, while the mediators identify certain conduct that they engage in response to our first question, they often identify additional conduct, tactics, and strategies in response to the second question. The coders identified a few mediators who gave the same one line answer for every survey that they filled out, which brings into question how serious they may have been in completing the survey. However, the overwhelming majority of mediators took the time to separately answer, often in great detail, our questions regarding the conduct that they engaged in to bring about a resolution.

The responses can be characterized as both facilitative and evaluative behavior. Facilitative behavior focuses on process considerations. Evaluative behavior involves the behaviors used by advocates, counselors, and people who provide direct substantive input into the deliberations. This is interesting because the EEOC program trains mediators in facilitative mediation and requests that the mediators use facilitative techniques. Our results indicate that in the real world of mediation this is not what always happens. Often the mediators indicate that they used both facilitative and evaluative tactics and often appear to do so fluently.

a. Facilitative Conduct

Mediators in 53% of the cases engage in strategies and tactics that we place in the facilitative category. Listening is a prevalent tool. Within this category we include a wide range of communicative behavior. This broad listening can be further broken down into: listening, reflexive questioning, paraphrasing, restating and facilitating a catharsis or dialogue (10%), reframing/use of probing questions (this includes moving the parties from positions to interests â 4%), helping parties see different vantage points (5%), clarifying facts/areas of agreement (3%), and defusing negative emotions (3%).

In addition to listening, mediators also use other types of facilitative behavior, such as encouraging openness, honesty, and direct communication (11%), keeping parties focused (8%), encouraging resolution (5%), gaining trust/rapport (3%), and stepping back/letting parties fashion the remedy (3%).

b. Evaluative Conduct

Mediators in 46% of the cases use evaluative conduct to help resolve the dispute. Mediators report engaging in behaviors that we broadly classify as "reality checking" behavior (27%), evaluating the strengths and weaknesses of the charge (7%), providing knowledge of the law/process (6%), exploring/ proposing options (6%), and negotiating actively (1%). The specific act of "reality checking" is the single most often-cited mediator conduct that contributes to the resolution of the dispute.

Although evaluative mediation skills are not emphasized in the EEOC training, they often happen and we posit that this may be due to a number of reasons, two of which stand out. The first is that with 80% of the mediations being mediated by EEOC staff we have a pool of process professionals who have substantial knowledge of the substantive matters being discussed and they may therefore venture into substance based discussions. Another is the notion, previously discussed, that the substance of the charge is legal or rights based in nature and so the transferal to an interest based forum like mediation does not completely eliminate the psychological nature of a rights based dispute. In other words, everyone knows that if the mediation fails, the dispute will return to a rights based format.

c. Personal Style

Personal style was identified in 19% of the cases. The "demeanor" of the mediator has a significant impact on the resolution of the dispute in 6% of the cases. Other personal variables cited include empathy (4%), persistence (4%), neutrality (3%), optimism (2%), and creativity (1%).

d. Other Conduct/Tactics

Caucus is an important mediator tool. Many mediators attribute the successful resolution to their use of or manipulation of the caucus (13%). This includes use of the caucus, use of long joint caucuses, attorney only caucuses, and caucuses where the attorneys are excluded. Success is at times predicated on separating the parties, which is indicative of a number of things: the parties are too emotional, they can not agree on an issue face to face, the issues are so contentious that only the representatives can discuss them, their relationship is too strained for face to face discussions, or a potential loss of face looms that can block the movement toward agreement. Whatever the reason, caucusing effectively temporarily removes one of the basic tenants of mediation â face-to-face real time discussion.

Process control is used by mediators to bring about dispute resolution. In 4% of the cases mediators identify process control tactics that contributed to a resolution.

Other identified tactics include such things as transformative or "quasi-transformative" tactics (1%). Transformative mediation is a relationship-based approach to conflict intervention that stresses that the mediation, if facilitated properly, can become a form of empowerment for the parties.^⁸ One potential explanation for this low frequency may be the nature of the issues being discussed, the need for a solution in order to avert an investigation or litigation, and the relatively low probability that these parties will be working with one another in the future. In short, the context, relationships, types of issues, and the emotional state of the parties may necessitate the need for the mediator to become more directive, controlling, and evaluative simply to keep the process on track.

Mediators also report that they control the introduction of evidence (1%) as a means of facilitating resolution. This means that the mediator can act as a filter as information is brought into the process. The way information is presented has an impact on how the other interprets it. In this instance, the mediator is assisting the communication process regarding the presentation of the fact pattern. The category also emphasizes the literal control of evidence. In some instances, the mediator will frame the discussion so that evidence is presented in a logical and timely manner. In both instances, this is a process control issue that focuses on the way information is used to discuss issues.

The use of pre-mediation calls (1%) is also another means of preparing and controlling the process. When mediators pre-arrange the presentation of issues they are effectively manipulating the process. In one instance the mediator kept the parties separated during the entire mediation and acted as a shuttle diplomat taking offers back and forth. The use of a pre-mediation conference call tipped the mediator off that the parties would likely be hostile to one another so the mediator decided to minimize this possibility by controlling contact during the process.

Table IX
Mediator Conduct that Facilitates Resolution of the Dispute

Responses	Frequencies	Percentages*
Facilitative Behavior
Listening
Listening, Reflexive Questioning, Paraphrasing, Restating and Facilitating Catharsis	119	9.7%
Reframing/Use of Probing Questions	53	4.3%
Helping Parties See Different Vantage Points	55	4.5%
Clarifying Facts/Areas of Agreement	38	3.1%
Defusing Negative Emotions	33	2.7%
Other
Encouraging Openness, Honesty, and Direct Communication	129	10.5%
Keeping Parties Focused	94	7.7%
Encouraging Resolution	62	5.1%
Gaining Trust/Rapport	30	2.5%
Stepping Back/Letting Parties Fashion the Remedy	30	2.5%
Total for Facilitative Behavior	643	52.6%

Evaluative Behavior
Reality Checking Behavior	326	26.7%
Evaluating the Strengths and Weaknesses of the Dispute	83	6.8%
Providing Knowledge of the Law/Process	74	6.1%
Exploring/Proposing Options	68	5.6%
Active Negotiation	7	0.6%
Total for Evaluative Behavior	558	45.8%

Personal Style
Demeanor	76	6.2%
Empathy	54	4.4%
Persistence	48	3.9%
Neutrality	33	2.7%
Optimism	12	1.0%
Creativity	8	0.7%
Total for Personal Style	231	18.9%

Other Strategies And Tactics
Caucuses	153	12.5%
Process Control	45	3.7%
Transformative or "Quasi-Transformative" Tactics	12	1.0%
Control of the Introduction of Evidence	9	0.8%
Effective Use of Pre-Mediation Calls	9	0.8%
Other	37	3.0%
Total for Other	265	21.7%

Grand Total Number of Responses	1697	138.8%
Total Cases Resolved	1223	100.0%

In summary, the conduct that contributes the most to the resolution of the dispute is the parties' and or their representatives' flexibility, realistic attitude, openness and willingness to compromise. Good mediation skills are important to facilitate conflict resolution. They include good listening habits, reflexive and active listening, reframing, reality checking by representatives with their clients, the ability to articulate issues, and respect for others. Preparation is another important variable that mediators report makes a difference.

Mediators engage in both facilitative and evaluative techniques to bring about resolution. Listening, reality checks, and caucuses are three key tactics used by mediators. Mediators seldom mention the use of transformative mediation tactics. One potential reason for this frequency might be due to the nature of the issues being discussed, the need for a solution, and the relatively low probability that these parties will be working with one another in the future.

D. Turning Points of the Mediation

In our analysis of mediations that result in a resolution, in addition to the mediator's perception as to the conduct of the parties that facilitate resolution, we sought another mediator perspective. If the dispute is resolved, what do mediators attribute as the turning point or points in the mediation? Mediators provide a unique perspective on the incidents and behavioral patterns that are critical for the resolution of the dispute. As process oriented participants or process experts, the mediators are not only conscious of process dynamics, they often deliberately manage the dynamics to ensure that every opportunity is made to keep the process moving. Mediators are afforded the opportunity to identify more than one turning point.

Mediators' responses to the open-ended question on turning points can be classified into seven groups: communication, attitudes, the offer, the mediator, the representative, feelings, andother variables. While coding the data we observed that although we had expected the identification of a certain discrete act or acts as turning points, the mediator responses included a wide range of behavior. Most of the responses to this question are not a single discrete act as one might expect from use of the phrase "turning point."

1. Communication

Communication and discovery-related (CDR) variables are turning points in 46% of the cases. Among the different CDR variables, changes in charging party and respondent position, demands, or behavior due to information obtained at mediation is the single largest turning point category (44%). This information is influential in cases involving 27% of the charging parties and 17% of the respondents. Thus, charging parties appear to benefit more from the information obtained at the mediation. This makes sense in that employers often have information that has not been provided to an employee that influences whether or not the employee believes that he or she has been the victim of illegal discrimination.

When parties come to mediation and gain new knowledge, facts, and information the process acts to empower the individual party. The literature on empowerment demonstrates that information exchange leads to new perspectives and therefore new information can positively impact how the parties solve the problem.^⁹

How information is communicated and received plays a major role in moving the process toward resolution. A well thought out opening statement (1%), a charging party's offer of evidence to support a claim (1%), and pre-mediation dialogue between the parties (1%) are also cited by mediators as turning points. These codes, while reported separately, join with the information providing conduct data discussed above to complete the category of communication and discovery-related variables.^¹⁰

2. Attitudes

Based on the words used by the mediators we classified a group of turning points in the category of parties' attitudes (39%). While the mediators report attitudes as turning points, it is clear from the coding that these attitudes usually did not develop at the mediation, but are more likely aimed at one's mindset, worldview or perspective. In some instances, attitudinal attributes are connected to the resultant behavior and so we code one part of it attitudinal and the other under the behavior category. Among the various attitudinal variables, both parties' openness to compromise and resolution (26%) is cited as the number one turning point. Other attitudinal variables include the charging parties' willingness to compromise (5%), respondents' willingness to compromise (5%) the parties' mutual trust (2%) and their attitudinal change as seen in a shift from positional to interest-based discussion (1%). All of these attitudinal measures have one major theme in common: the desire to focus more on common ground than on those things that divide the parties. Seeking compromise requires an attitude conducive to the search for common ground.

3. The Offer

In 11% of the cases, presentation or discussion of "the offer" is cited as a turning point. While this may be the result of information obtained at mediation or due to party attitudes, the presentation or discussion of "the offer" represents a distinct chronological point in the mediation. The offer includes conduct such as the respondent offering more money and/or other benefits, or an offer to hire/or rehire (5%), and the charging party or the respondentmeeting all demands (3%). In other instances the parties' exchange of a reasonable initial exchange or offers (1%) or the parties' descriptions of the resolution offer (1%) and the communication of the final offer (1%) are turning points.

4. The Mediator

Mediators sometimes cite their own mediator behavior (12%) as a turning point. Strategies and tactics that they identify as a turning point include reality checking (5%), the use of a caucus with the parties (5%), encouragement by the mediator to settle (2%), and keeping the parties focused (0.3%). When the mediator acts as a process resource, such as a reality checker, or a reflecting board, or otherwise manages the parties' dialogue effectively, this conduct can aid in reaching a solution. By keeping control of the process dynamics through the use of caucusing, the mediator can keep the process on track. Another technique mediators use is to keep the parties focused. Given all the other possible reasons why disputing parties often lose focus or worse get so far down into the specifics of their case that they are mired in detail and can not see the general reasons for the dispute, it is imperative that the mediator focus and refocus parties from time to time.

5. The Representative

In 12% of the cases the behavior of legal and non-legal representatives is identified as a turning point. Charging parties' lawyers (6%) and respondents' lawyers (4%) play an important role that can lead to the resolution of the dispute. Lawyers who are familiar with or experienced in mediation understand the dynamics and intention of the process. As such these lawyers often act as stabilizing forces by keeping their clients on tract, checking expectations with the potential outcome that the process can deliver, and supporting clients through a host of other behaviors. The influence of external parties, such as the co-owner and spouse (1%) and the direct participation of key players from the respondents' side in mediation (0.5%) are also turning points.

6. Feelings

In 9% of the cases, acknowledgment of feelings and culpability serves as a turning point.^¹¹ More specifically, respondents' recognition of charging party's hurt (3%) parties' recognition of each other's position (2%), respondents' admission of some liability/apology (2%), charging parties' admission of some liability (0.4%), charging parties' venting/catharsis (2%), and the charging parties' specific expression of need (0.3%) are cited as turning points in mediation. Attending to the others' feelings, empathizing and demonstrating concern in a sincere manner can be a turning point. Admission of some liability may also act as a turning point because it may reduce the tendency of one party to act as a complete victim and therefore require the other to assume the role of the villain. Also, by apologizing one not only takes responsibility but also sidetracks the potential for a long-winded scenario where one person attempts to corner the other into being the source of his/her problem.^¹²

7. Other Variables

Other turning points include the parties' need to preserve future relationship (1%), which can be a good place to begin the search for common ground. In other instances it is the exact opposite whereby the charging parties "moving on" with their life (1%) is the primary motivating factor in obtaining a resolution. One unusual code is the strong desire to leave the mediation for reasons, such as time pressures, personal schedules, bad weather, need to travel, getting to another meeting, and other non process oriented reasons (1%). As the literature demonstrates repeatedly, if there is a time line and cutoff where the mediation must end then this can begin to act as turning point.

Included in the miscellaneous category (2%) are turning points such as the use of a co-mediator, current relationship with lawyers, moment of silence, and removal of a person from the process. The data in the "miscellaneous category" needs further examination to tease out patterns and/or to place some of these codes in other coding categories. This information is summarized in Table X.

Table X
Turning Points of the Mediation

Responses	Frequencies	Percentages*
Communication
Information Obtained at Mediation	537	43.7%
Opening Statement	9	0.7%
Offer of Evidence to Support Claim	8	0.7%
Pre-Mediation Dialogue	6	0.5%
Total Responses for this Section	560	45.8%

Attitudes
Openness to Compromise and Resolution	317	25.9%
Charging Parties' Willingness to Compromise	66	5.4%
Respondents' Willingness to Compromise	57	4.7%
Parties' Mutual Trust	29	2.4%
Shift From Positional to Interest-Based Discussion	10	0.8%
Total Responses for this Section	479	39.2%

The Offer
More Money & Other Benefits	58	4.7%
Respondent Meeting All Demands	42	3.4%
Parties' Reasonable Initial Exchange of Offers	15	1.2%
Parties' Descriptions of the Resolution Offer	8	0.7%
Communication of Final Offer	7	0.6%
Total Responses for this Section	130	10.6%

The Mediator
"Reality Checking"	56	4.6%
Caucus	58	4.7%
Encouragement	23	1.9%
Other Tactics	8	0.7%
Keeping the Parties Focused	4	0.3%
Total Responses for this Section	149	12.2%

The Representative
Charging Parties' Lawyers	67	5.5%
Respondents' Lawyers	51	4.2%
External Parties	16	1.3%
Participation of Key Players from the Respondents' Side	6	0.5%
Removal of a Participant	4	0.3%
Total Responses for this Section	144	11.8%

Acknowledgement of Feelings
Recognition of Charging Parties' Hurt	35	2.9%
Recognition of Each Other's Position	26	2.1%
Admission of Some Liability/Apology	24	2.0%
Charging Parties' Venting/Catharsis	19	1.6%
Charging Parties' Admission of Some Liability	5	0.4%
Charging Parties' Specific Expression of Need	4	0.3%
Total Responses for this Section	113	9.2%

Other Variables
Recognition of the Costs of Not Settling	27	2.2%
Parties' Need to Preserve Future Relationship	11	0.9%
Charging Parties "Moving On With Their Life"	9	0.7%
Strong Desire to Leave the Mediation	7	0.6%
Miscellaneous Category	27	2.2%
Total Responses for this Section	81	6.6%

Grand Total Number of Responses	1656	135.4%
Total Cases Resolved	1223	100.0%

E. Non-Resolution

1. Reasons/Causes and Perceived Responsibility

Mediators are asked to list explain in detail the three main reasons for the non-resolution of the dispute. This results in a narrower coding range. In 53% of the cases, mediators attribute the non-resolution to a range of behavior codes in the category of the charging party or parties' actions. This does not necessarily mean that the charging party was acting unreasonable, although many of the responses indicate this typically happens. In 46% of the cases, the respondent's actions are held responsible. In 31% of the cases, the non-resolution was attributed to the actions of both parties. In coding this data where up to three reasons are listed, it was possible to have a first response that identified both parties, and a second response that identified one party or the other. Thus, these particular codes are not mutually exclusive and our reported results are cumulative.

Other reasons for non-resolution include the actions of the charging party's lawyer (13%) and the actions of respondent's lawyer (7%). The parties sometimes used nonlegal representatives who the mediators indicate are a barrier to resolution - 1.8% for charging parties and 1.4% for respondents.

Outside factors (8%) that are not under the control of the mediator also blocked the resolution of the dispute. Here both charging parties (3%) and respondents (5%) are influenced by outside events or actors, such as unions and outstanding grievances, insurance companies, jurisdictional questions, and other legal causes of action outside of the scope of the EEOC dispute. The lack of legal representation is another reason cited (1%). Other (1%) reasons are mediator self-blame and the lack of urgency to settle on the day of the survey. Table XI presents this information.

Table XI
Specific Reasons Cited for the Non-Resolution of the Dispute

Responses	Frequencies	Percentages*
Charging Party's Actions	427	52.7%
Respondent's Actions	373	46.0%
Actions of Both Parties	249	30.7%
Actions of the Charging Party's Lawyer	104	12.8%
Actions of the Respondent's Lawyer	54	6.7%
Outside Factors	67	8.3%
Non-Legal Representatives	24	3.2%
Lack of Legal Representation	6	0.7%
Other	6	0.7%
Total Responses	1310	161.5%
Total Number of Unresolved Cases	811	100.0%

^{Note: Total number of unresolved cases is 811. Since some mediators have given multiple reasons, the total number of responses differs from actual number of unresolved cases. The percentage given is a function of the unresolved cases and not of the responses or participants.}

The next step in the coding protocol for this survey question is to identify the primary obstacle to the resolution of the dispute. This is accomplished by our analysis of the specific reasons cited by the mediator for the non-resolution of the dispute. The coders then attribute responsibility to the most culpable party or other factor.^¹³ This coding requires that the coder select one choice from the list of possible codes. While in many cases the mediators readily point to the party or reason, this was not always the case. Here, the coder made the final decision based on the mediators' comments and, in harder to discern cases, often in conjunction with input from the other coder.

Mediators perceive that both parties are equally responsible for non-resolution in 33% of the cases. The perceived responsibility is placed on the charging party 28% of the time, charging parties' legal representatives 8% of the time, and their non-legal representatives less than one percent of the time (1%). Mediators report that the respondent is responsible for non-resolution 22% of the time, their legal representatives 3% of the time, and their non-legal representatives less than one percent of the time (1%).

Sometimes the mediator needs more time. This was attributed as the reason for non-resolution in 3% of the mediations.

Table XII
Perceived Responsibility for the Non-Resolution of Disputes, Imputed From Mediators' Comments

Responses	Frequencies	Percentages*
Both Parties Equally Responsible	266	32.8%
Charging Party or One of the Charging Parties	229	28.2%
Respondent	180	22.2%
Charging Parties' Lawyer	64	7.9%
Respondents' Lawyer	25	3.1%
The Lawyers of Both Parties Equally Responsible	23	2.8%
Charging Parties' Agent	7	0.9%
Respondents' Agent	4	0.5%
Other Factor: Time (Ran out of Time)	24	2.9%
Total Responses	822	101.4%
Total Unresolved Cases	811	100.0%

Note: Total number of unresolved cases is 811. Since some mediators have given multiple reasons, the total number of responses differs from actual number of unresolved cases. The percentage given is a function of the unresolved cases and not of the responses or respondents.

2. Conduct that Interferes With Resolution

After identifying the three main reasons why the dispute was not resolved, we asked the mediators to identify any conduct by the parties that interfered with the resolution of the dispute.

a. Charging Party Behavior that Interferes With Resolution

Mediators identify participant behavior that they believe interferes with the resolution of the dispute. As shown in Table XIII, in 73% of the cases, the mediators indicate that the charging parties engage in conduct that interferes with the resolution of the dispute. In particular mediators state that the charging party engages in some type of interfering behavior, positional conduct or both in 55% of the cases. This category includes behavior such as unrealistic, rigid, not prepared, inflexible, passive, language problems, need for an attorney, overconfidence, inability to make a decision, not knowing what one wanted, failure to address the real issue, failure to distinguish unfair from illegal, and other similar behaviors.

We separately code conduct that we deem to be driven by the charging parties' emotion (15%). These behaviors include blaming the other party, anger, intent to "make the company pay," and being too upset to effectively participate.

In addition, the charging parties can be influenced by external events, which can either block resolution or otherwise interfere with the mediation. These external issues include other legal causes of action (e.g. defamation, wrongful discharge, breach of contract, worker's compensation â 3%), the charging party's financial situation, and other events or factors outside of the mediation.

b. Charging Party Representative Behavior that Interferes With Resolution

Mediators also cite specific behavioral attributes of the charging parties representatives' (legal and non-legal) that interfere with resolution. This includes the unrealistic/unreasonable evaluation of the claim (18%), adversarial/arrogant/

argumentative conduct/hijacking of the mediation process (11%), and demonstrating in some way a lack of commitment (5%) to the mediation process or to the resolution of the dispute. Mediators also observe that the charging parties' lack of preparation (4%), and use of mediation as a discovery tool (2%) are other factors that cause the dispute to unresolved.

c. Respondent Behavior that Interferes With Resolution5>

Mediators observe that the single largest grouping of respondent behavior that interferes with the resolution of the dispute is an unrealistic and/or rigid position or related behavior (32%). This behavior includes descriptions of behavior such as unrealistic, entrenched, wanted to much, failure to address the real issue, refusal to make an offer, and similar conduct. Respondents' can also be too adversarial, emotional, or adopt a "holier than thou" attitude all of which we classified in the attitudinal cluster (10%). Respondent lack of decision-making authority interferes with the resolution in many mediation cases (6%). Respondents also can be influenced by external events (1%) that interfered with the resolution of the dispute.

d. Respondent Representative Behavior that Interferes With Resolution

Mediators' perceptions of the conduct of the respondents' representative (legal and non-legal) that contribute to non-resolution include their unrealistic and/or unreasonable evaluation of the claim (15%), adversarial, arrogant or argumentative attitude including hijacking of the mediation process (10%), limited decision-making authority (3%), lack of preparation or knowledge (2%) and overt hostility to the charging party (1%). In a few cases (1%) the fact that the EEOC dispute was part of a larger litigation action also interferes with the resolution of the dispute. Lack of adequate client preparation (1%) and other factors, such as the use of scare tactics and tactics that limited the mediator are also cited as behavior that interfered with the resolution of the dispute.

Table XIII
Mediator Perceptions of Participant Behavior that Interfered with the Resolution of the Dispute

Responses	Frequencies	Percentages*
Charging Party
Behavior, Positional Conduct, or Both	445	54.9%
Emotion	124	15.3%
External Events	20	2.5%
Other	6	0.7%
Total Responses for Charging Party	595	73.4%

Charging Party's Lawyer or Representative
Unrealistic/Unreasonable Evaluation of Claim	147	18.1%
Too Adversarial/Arrogant/ Argumentative/Hijacking of the Process	86	10.6%
Lack of Commitment	39	4.8%
Lack of Preparation	29	3.6%
Use of Mediation as a Discovery Tool	14	1.7%
Lack of Time	4	0.5%
Total For Charging Party's Lawyer or Representative	319	39.3%

Respondent
Unrealistic and/or Rigid Position or Related Behavior	261	32.2%
Too Adversarial, Emotional, or Adopt a "Holier than Thou" Attitude	84	10.4%
Lack of Decision-Making Authority	47	5.8%
Influence of External Factors	8	1.0%
Offer is Outstanding (Indecisiveness)	6	0.7%
Total For Respondent	406	50.1%

Respondent's Lawyer or Representative
Unrealistic and/or Unreasonable Evaluation Of Claim	118	14.5%
Too Adversarial, Arrogant, or Argumentative	78	9.6%
Limited Decision-Making Authority	23	2.8%
Lack of Preparation or Knowledge	15	1.8%
Overt Hostility	9	1.1%
Lack of Adequate Client Preparation	8	1.0%
Part of a Larger Litigation Action	6	0.7%
Other	5	0.6%
Total for Respondent's Lawyer or Representative	262	32.3%

Total Responses	1582	195.1%
Total Number of Unresolved Cases	811	100.0%

3. Barriers to the Resolution of the Dispute

We ask the mediators to list the five most important barriers to the resolution of the dispute. The question asks that they list these barriers in order of importance. This open-ended question allows the mediators to identify anything that they perceive to be a barrier to resolution. While the survey requests the mediator to list up to five barriers, in many cases they identify less than five.

The barriers to resolution question requires the coders to once again add an additional summary code that requires a subjective determination of the response as to which party or representative is seen by the mediator as the major barrier to the resolution of the dispute. We attempt to ascertain whom the mediator identifies as the party or parties that caused the mediation to stall. The same coding protocol we use for the previous question (on why the dispute was not resolved) is also used here. The one difference between these questions is that this one requires the mediator to identify the barriers in hierarchical order. Thus we are able to discuss how often a barrier is ranked within the five-scale range.

Mediator feedback regarding the barriers can be broken into the following major categories: 1) positional conduct of the parties; 2) the "table" conduct of the parties; 3)3) the conduct of the parties' attorneys or other representatives; 4) emotion/attitude; 5) lack of respondent authority at the table; 6) external factors; and 7) miscellaneous factors.

The positional conduct of the parties is the most significant barrier to the resolution of the dispute. It is listed as the number one barrier in 65% of the cases. A further breakdown shows that this is reported as the charging parties' positional conduct in 56% of the observations. Moreover, this is reported as the number one barrier in 37% of the cases. This category includes behavior such as an unrealistic or unreasonable position, refusing to settle for reinstatement only, seeing the other party as wrong at the expense of the process, refusing to go along with the process, insisting on reinstatement as a condition for resolution, the inability to make a decision, not knowing what one wanted and similar conduct.^¹⁴ The respondents' positional conduct constituted 46% of the barrier observations. However, it was only identified as the number one barrier in 20% of the cases. This appears to signal that the mediators saw the charging parties' conduct as the number one barrier much more often.

Within the category of respondents' positional conduct, in addition to the broad category of taking a position that was not conducive to a mediated resolution, we identified particular conduct and/or positions that acted as barriers. In 5% of the cases the respondent took a position of innocence/did nothing wrong; in 4% of the cases the refusal to pay any money was the barrier. In 3% of the cases the respondent would not offer anything! In other words, the respondent attended the mediation and refused to make any concession -- monetary or nonmonetary.

Both parties' positional conduct is identified in tandem as a barrier. This barrier is reported by mediators in 16% of the observations and is ranked as the number one barrier in 9% of the cases. In addition to the conduct identified above for each party, this category also had a reciprocal element including the inability of the parties to work together to resolve the problem or to value the case, and a zero sum factual face-off that handcuffed the parties.

The second major category of behaviors that act as a barrier is the "table " conduct of the parties (41%). Here we identify actual negative bargaining/mediation conduct that we see as more than merely positional conduct. While it is sometimes difficult to distinguish between a position and conduct, here we identify acts that serve as barriers at the mediation table. The charging party table conduct was identified in 24% of the observations. Such conduct includes the refusal to explore options, listen, negotiate, discuss all issues, detail one's damages demand, or to show any interest in settling the dispute. This charging party table conduct was the number one barrier in 6% of the cases.

The respondent table conduct was identified as a barrier in 17% of the observations and as the number one barrier in 6% of the unresolved cases.

The third most common barrier is the conductof the parties' attorneys or other representatives; thisconstitutes 27% of the barrier observations. Note that attorneys could be a barrier due to their aggressiveness, unreasonableness, lack of preparation, positions, or even be a barrier just by doing their job and advising their clients against settling. Thus, this measure includes both destructive conduct and professional conduct. The same could be said for the parties' other representatives. The conduct of the charging party's attorney is identified as a barrier 13% of the time and is the number one barrier in 4% of the cases. The conduct of the respondent's attorney is observed as a barrier 9% of the time and as the number barrier to resolution 3% of the time.

The conduct of the charging parties' other representative is observed as a barrier to resolution 2% of the time and in 1% of the cases is the number one barrier. For the respondents' other representative this constitutes 1% of the observations and the number one barrier in a half percent of the cases. Here is a good example of a non-legal representative having difficulty. "Never represent your mother. Charging Party attorney couldn't be objective and couldn't provide important advice. I didn't feel as free to ask probing questions due to their relationship. Charging Party attorney was not a labor lawyer."

The fourth category of barriers is the emotion/attitude of the parties. The charging party's emotion/attitude is a barrier in 14% of the observations and was the number one barrier in 4% of the cases^¹⁵. This conduct includes being distraught over the discrimination at issues, anger and other emotions. The respondent's emotion/attitude is identified as a barrier in 7% of the cases and the number one barrier in 1% of the cases. This respondent barrier was often described as the lack of respect for the charging party or other such language that strikes at the dignity of the charging party. In addition, a closely related to emotion/attitude is the category of personality clash. Some type of personality clash, which includes ethnic tension, dislike, and related behaviors are identified as a barrier in 2% of the observations. It is the number one barrier 1% of the time. While we report this as a separate category, it could be included in the emotion/attitude barrier category.

These findings indicate that all it takes is one person to derail the process through a counter-productive attitude or emotional state (angry, sad, fearful, or even violent). Here is a good example of how one party can stop the process. "Mediator could not keep the Respondent from attacking Charging Party verbally which continued to upset Charging Party. It was determined to end the mediation because it appeared that there could have been physical violence." Here is another instance. "Charging Parties combative attitude. She did not work to listen to the person which had direct knowledge about the dispute. This process is voluntary. Parties must be willing to participate and listen to each other and be willing to compromise. Charging Party was unwilling to compromise even if Respondent was accommodating."

The lack of respondent authority constitutes 9% of the barrier observations and is the number one barrier 4% of the time. This indicates that we see this barrier almost 10% of the time but that when we do it is the number one barrier in half the cases where it appears. This indicates that this is a particularly pernicious barrier. We find that it is most prevalent, but not exclusive to, public entities. There seems to be nothing more irritating and yet more preventable than to have a respondent at the table who cannot make the final decision. This, according to some mediators, comes close to acting in bad faith. By sitting through the entire mediation to only announce at the end that the proposal will be taken back for consideration is seen by mediators as frustrating, improper, underhanded, and sometimes unethical.

External factors are a barrier in about 6% of the cases. These factors include other lawsuits, other EEOC charges, probate proceedings, relationships and other factors external to the EEOC charge/dispute at mediation, but which exercises influence over the dispute and its resolution. External factor(s) is the number barrier in almost 3% of the cases. Similar to lack of authority, when it appears it is often the primary barrier. Other lawsuits, relationships between management and unions, developing case law, and other external forces or actors play a decisive role in whether or not the case will be resolved at the table or perhaps in the courts. The external context is an important issue for future intake procedures. Identification of such external issues may assist the mediator prepare for these tougher cases.

Miscellaneous factors also provide insight into mediation barriers. These include: the interference of legal issues/use of mediation for discovery (4%), lack of witnesses and legal representatives (5%), the role of time (3%), the respondent as a state entity^¹⁶ (2%), lack of trust between the parties (2%) mediator self blame (1%), party walkouts (1%), and language/communication difficulties (1%).

Example of lack of trust includes "Lack of trust on the part of CP." Another more detailed response is "Respondent not interested in offering Charging Party anything. Charging Party had entered into a prior agreement and then filed an EEOC charge after Respondent and him signed off on another agreement."

Regarding the use of mediation for discovery, it is often not possible for the mediator to discern this intent. Acting in bad faith by using the mediation process as a form of discovery is a serious concern and charge so it is somewhat a relief to know that mediators indicate this happens rarely. Then again, this may be the instance where the parties are overt as to their motives while in other cases they are more covert. We note that the overall climate of EEOC mediation, from the point of first contact to the disposition of the case, is heavily influenced by a legalistic culture. This context may therefore help to produce more instances of bad faith discovery than in other arenas that incorporate mediation.

The role of time has appeared in the various parts of our study. We note that in many instances time is short because one of the parties, including attorneys and other representatives, only schedule two hours for the mediation or fly in for half the day and need to get back to the airport. The implication here is to advise intake personnel to have the parties' plan for at least four hours (just above the mean for the mediations). This may remedy the situation.

We find it interesting that of the 811 unresolved cases and the over 2000 responses by mediators about barriers, only 7 report their conduct was a barrier to resolution.

Table XIV
The Five Most Important Barriers to the Resolution of the Charge

Responses

Total*

Positional Conduct of the Parties

Charging Party's

Positional Conduct

296

(36.50%)

(10.48%)

(5.30%)

(2.34%)

(1.11%)

452

(55.73%)

Respondent's

Positional Conduct

158

(19.48%)

121

(14.92%)

(7.40%)

(3.08%)

(1.36%)

375

(46.24%)

Both Parties'

Positional Conduct

(9.25%)

(2.10%)

(2.47%)

(0.86%)

(1.36%)

130

(16.03%

Sectional Total

529

(65.23%)

223

(27.50%)

123

(15.17%)

(6.29%)

(3.82%)

957

(118.00%)

"Table Conduct" of the Parties

Charging Party

Table Conduct

(6.17%)

(9.25%)

(4.93%)

(2.34%)

(0.86%)

191

(23.55%)

Respondent Table

Conduct

(5.8%)

(5.43%)

(2.84%)

(2.47%)

(0.86%)

141

(17.39%)

Sectional Total

(11.96%)

119

(14.67%)

(7.77%)

(4.81%)

(1.73%)

332

(40.94)%

Emotions/Attitudes of the Parties

Charging Party's

Emotions

(4.19%)

(3.33%)

(1.97%)

(0.62%)

116

(14.3%)

Respondents'

Emotions

(1.36%)

(2.59%)

(1.48%)

(0.86%)

(0.25%)

(6.54%)

Sectional Total

(5.55%)

(6.78%)

(4.81%

(2.84%)

(0.86%)

169

(20.84%)

Conduct of the Legal and Non-Legal Representatives

Charging Parties'

Lawyer

(4.44%)

(5.18%)

(2.47%)

(0.62%)

108 (13.32%)

Respondents'

Lawyer

(3.08%)

(2.96%)

(2.22%)

(0.74%)

(0.37%)

(9.37%)

Lawyers of Both

Parties

(0.00%)

(0.12%)

(0.00%)

(0.12%)

The Behavior of the

Non-Legal

Representatives of

the Charging Party

(0.86%)

(0.74%)

(0.37%)

(0.12%)

(0.25%)

(2.34%)

The Behavior of the

Non-Legal

Representatives of

the Respondent

(0.49%)

(0.25%)

(0.37%)

(0.12%)

(1.36%)

Sectional Total

(8.88%)

(9.12%)

(5.43%)

(1.73%)

(1.36%)

215

(26.51%)

Lack of Respondent Authority

(3.95%)

(2.83%)

(1.23%)

(0.49%)

(0.12%)

(8.63%)

External Factors

(2.47%)

(1.36%)

(1.11%)

(0.49%)

(0.12%)

(5.55%)

Miscellaneous Factors

Lack of Preparation

(1.60%)

(1.73%)

(0.74%)

(0.25%)

(0.12%)

(4.44%)

Intense Personality

Clash

(0.74%)

(0.49%)

(0.25%)

(0.37%)

(0.25%)

(2.10%)

Lack of Trust

(0.37%)

(0.62%)

(0.25%)

(1.97%)

Interference of

Legal Issues/Use of

Mediation for

Discovery

(0.86%)

(1.36%)

(0.74%)

(0.62%)

(0.25%)

(3.82%)

The Lack of

Witnesses and Legal

Representatives

(1.23%)

(1.36%)

(0.86%)

(0.37%)

(5.06%)

The Role of Time

(1.85%)

(0.49%)

(0.37%)

(0.12%)

(3.33%)

The Respondent as

a State Entity

(0.37%)

(0.62%)

(0.37%)

(0.12%)

(1.85%)

Mediator Self

Blame

(0.25%)

(0.12%)

(0.25%)

(0.12%)

(0.86%)

Language/

Communication

Difficulties

(0.25%)

(0.12%)

(0.25%)

(0.00%)

(0.86%)

Party Walkouts

(0.25%)

(0.00%)

(0.25%)

(0.12%)

(0.00%)

(0.62%)

Other

(0.25%)

(0.74%)

(0.37%)

(0.62%)

(0.12%)

(2.10%)

Total for Other

(8.01%)

(7.64%)

(5.55%)

(4.20%)

(1.73%)

219

(27.00%)

Grand Total Responses

860

(106.0%)

567

(70.0%)

333

(41.0%)

169

(20.8%)

(9.74%)

2007

(247.6%)

Total Unresolved Cases

811 (100.0%)

As discussed above, based on the analysis of the mediator comments regarding the five most important barriers to the resolution of the disputes, the coders then attribute responsibility for the these barriers to the various parties. The coders examine the totality of the mediators' comments before a determination is made. We conclude that mediators perceive that the charging party is responsible in 25% of the cases, both parties are equally responsible in 24% of the cases, and the respondent is responsible in 16% of the cases. The lawyer for the charging party is responsible 6% of the time while the respondents' lawyer is responsible 4% of the time. The non-legal representatives of the parties (1% for the charging parties and 1.0% for the respondents) are also seen to be responsible for erecting barriers to the resolution of the dispute.

Table XV
The Participant Responsible for the Five Most Important Barriers to the Resolution of the Dispute, Imputed From Mediators' Comments

Participants	Frequencies	Percentages*
Charging Party	204	25.2%
Both Parties Equally Responsible	192	23.7%
Respondent	128	15.8%
Charging Party's Lawyer	45	5.5%
Respondent's Lawyer	30	3.7%
Both Lawyers Equally Responsible	18	2.2%
Respondent's Agent	8	1.0%
Charging Party's Agent	6	0.7%
Mediator (Self-Blame)	2	0.2%
Both Agents Equally Responsible	1	0.1%
Total Responses	634	78.1%
Number of Unresolved Cases	811	100%

F. Hindsight - What The Mediator Would Have Done Differently?

Given that many of the mediation cases do not result in a full or even partial settlement, it is important to ask mediators, in immediate hindsight, to identify what they would have done differently to attempt to bring about a resolution. This open-ended question allows mediators to identify any and all tactics, strategies, philosophical approaches or other ways of interacting that they think would have led to a settlement. The majority of the mediators either does not answer this question or indicate that they would do nothing differently. Of those who do answer the question in more specific detail, we have a rich and insightful data set on how the EEOC can improve the process. Mediators identify two major categories of changes: pre-screening and strategies and tactics that they believe can be used to alter the dynamics of the conflict resolution process.

Sixty percent of the responses pertain to pre-screening. As the coding process progressed we developed three separate but similar codes pertaining to pre-screening. Under our first code, thirty-two percent (32%) of the mediators indicate that they would conduct a pre-screening (they did not do any) or would engage in a more thorough pre-mediation preparation of the parties. Within this coding category the mediators also identify conduct, such as calling parties in advance to ensure that they knew about each other's witnesses. Mediators also indicate that they would ensure that the parties are willing to bargain and negotiate in good faith and or have the right frame of mind to come to mediation. We have also combined other codes to create another pre-screening category in which twenty (20%) percent of the mediators indicate that they would engage in a more comprehensive pre-screening of the cases to make sure that the cases and the parties were appropriate for mediation. This second coding category is extremely important not only for the intake part of the mediation process but also in terms of the program evaluation. In essence, one in five mediators who respond to this question indicate that they think the case itself was not amenable to the mediation process. Some question whether the case was misclassified at intake as a case that can be mediated. Others state that the case should have been classified as a no merit case ("c" case) at intake.

Under a third pre-screening code eight percent (8%) of the mediators say they would have required the respondents and/or their representatives to either have themselves vested with authority or to bring the appropriate decision-making authority to the mediation. One in ten cases (four percent overall) indicate that there is a failure to reach agreement simply because the wrong person is at the table.^¹⁷

More than a third (37%) of the mediators of cases that fail to reach a settlement indicate that they would change their strategies and tactics to improve the resolution rate. Changes include a stronger dose of reality checking to one or both of the parties (10%), the better use of caucuses (7%), and better probing (4%). The use of reality checking indicates that a number of mediators believe that some parties have unrealistic expectations about what they can gain from the mediation process. This is an interesting finding as it challenges much of the literature on facilitative mediation that essentially prohibits mediators from assessing the case from any of the parties' perspective. The prohibition is well founded in that a mediator is not an advocate for a party but for the process and must therefore remain "neutral" or better yet "professionally distant." Reality checking can alter the process by steering a party toward what the mediator thinks is a more likely or perhaps reasonable solution. Thus, while it is a valid mediator tool it must be used with caution.

Caucusing is another mediator tool. What we are finding is that in some cases mediators are surmising that the separation of the parties can increase the chances of reaching a settlement. What we are curious to clarify is why caucusing is seen as so popular a mediation tool in this survey. Does the separation of the parties allow for a cooling off? Does it allow for individual conversation that is more manageable? Does it give the mediator an opportunity to regain control or time to figure out what is happening? Can caucusing be a crutch for the inexperienced mediator?

In about 7% of the cases timing is an issue. This includes the time of the day for the mediation (i.e. should have scheduled earlier for more time), whether it was the right time for the parties to meet, and the right time to terminate the mediation. Mediators indicate that some cases that went to mediation were not ready for mediation. The question is why do mediators begin or continue a mediation that they think should not be conducted? Program administrators should consider the implications of this finding, which may relate to pre-screening tactics, to ensure that all timing aspects work in favor of resolution.

Use of probing to get past positions is another mediator tactic. Probing of the parties is a communication and dialectic technique that is often used when parties are limiting their communication to a few words so as not to expose information. It is an effort to change the focus of communication, to structure it on interests rather than positions.

Table XVI
Mediators' Perceptions of What They Would Have Done Differently to Resolve the Dispute

Responses	Frequencies	Percentages*
Pre-Screening Elements
Thorough Pre-Mediation Preparation	76	31.7%
More Comprehensive Pre-Screening of the Cases	50	20.1%
Pre-Screening to Ensure that Appropriate Decision- Makers are Present	18	8.0%
Total for Pre-Screening Elements	144	60.0%

Changes In Mediator Strategies And Tactics
Stronger Dose of Reality Checking	24	10.0%
Better Use of Caucuses	16	7.0%
Timing	16	6.8%
Better Probing	10	4.2%
Getting Tougher	5	2.1%
Speaking to Parties Alone	4	1.7%
Other Changes	13	5.4%
Total for Changes in Mediator Strategies and Tactics	88	36.7%

Other	8	3.3%

Total Number of Responses	240	100.0%
Total Number of Unresolved Cases	811
Responses as a Function of the Total Cases		30.0%

Note: The percentages given are a function of the total number of responses, unless otherwise noted.

In summary, for the question that focuses on what would mediators do differently in mediations where no agreement is reached, we find that most of the mediators either do not answer the question or state that they would do nothing differently. Doing nothing differently is an answer that lets us know that the mediators think that they did their best and the case just was not meant to settle in a mediated forum or, alternatively, that the mediators were hesitant to criticize themselves. For those who do offer more specific hindsight, the majority indicates they would spend more time conducting pre-screening activities. Other process-related tactical changes include the use or better use of the mediation tools, such as reality testing, caucuses, and probing. Timing is also listed as a factor.

G. Evaluation of the Dispute Resolution Skills of the Parties' Legal and Non-Legal Representatives

Mediators are requested to evaluate the dispute resolution skills of the parties' legal and non-legal representatives. The majority of the mediators (60%) give the charging parties' lawyers a rating of 4 or 5 (on a scale of 1 to 5 where 1 equals minimum skill and 5 equals excellent skills). Similarly, the majority of mediators (68%) give the respondents' lawyers a rating of 4 or 5. The mean rating for the charging parties' lawyers is 3.63 and the respondents' lawyers is 3.85. Thus, on average, respondents' lawyers receive a slightly higher skill rating than charging parties' lawyers. We think there may be a number of plausible reasons behind this set of findings. One may be the possibility that attorneys for respondents are more familiar with the EEOC case law whereas charging parties may hire from a broader pool of attorneys or simply hire someone they know or can afford. Perhaps there is an expertise advantage. Whatever the reason for the difference in mean ratings, this is another area that can benefit from further research. The ratings are presented in Table XVII.

Table XVII
Evaluation of the Dispute Resolution Skills of the Legal Representatives

Rating	Frequencies	Percentages
Charging Party's Attorney
1 â Minimum Skill	45	6.0%
2	88	11.8%
3	169	22.7%
4	240	32.3%
5 â Excellent Skills	202	27.2%
Total Responses	744	100.0%

Mean Rating = 3.63

Respondent's Attorney
1 â Minimum Skill	35	3.0%
2	93	7.9%
3	252	21.5%
4	422	36.0%
5 â Excellent Skills	369	31.6%
Total Responses	1171	100.0%

Mean Rating = 3.85

The mediators are also asked to separately rate the dispute resolution skills of the parties' non-legal representatives. The majority of the representatives of the charging parties (60%) and respondents (63%) receive a rating of a 3 or 4. The mean rating for the charging parties' non-legal representatives was a 3.05, whereas mean for the respondents' non-legal representative is 3.46. Thus, mediators perceive respondents' non-legal representative to be more skilled than the charging parties' non-legal representative. This makes sense because many of the respondent's representatives are skilled human resource professionals who may regularly serve as advocates before the EEOC and at mediation. Table XVIII presents this information.

Table XVIII
Evaluation of the Dispute Resolution Skills of the Non-Legal Representatives

Rating	Frequencies	Percentages
Charging Party's Non-Legal Representative
1 â Minimum Skill	65	14.3%
2	64	14.1%
3	152	33.5%
4	136	30.0%
5 â Excellent Skills	41	9.0%
Total Responses	458	100%

Mean Rating = 3.05

Respondent's Attorney
1 â Minimum Skill	57	6.4%
2	109	12.2%
3	254	28.4%
4	310	34.7%
5 â Excellent Skills	163	18.3%
Total Responses	893	100%

Mean Rating = 3.46

Analyses of the results of the mediators' skill rating of the parties' legal and non-legal representatives suggest that the mediators perceive the respondents' representatives, especially legal representatives, to have better dispute resolution skills than the charging parties' representatives. In general, the legal representatives of the parties receive higher ratings from the mediators than the non-legal representatives. While such comparisons are fraught with methodological issues (for example, it may be that the types of cases handled by attorneys versus other representatives are different and thus not comparable), it is clear that overall there is a difference in mediator perceptions regarding the skill levels of the representatives of the parties, and between attorneys and other representatives. Respondents seem to have an advantage over the charging parties with regard to the skill level of their representatives. Attorneys seem to have an advantage over other representatives. These results indicate that a program to provide legal representatives to charging parties may benefit the mediation process by leveling the playing field between those who have counsel and those who do not.

H. Mediator Suggestions for Process Improvement

Mediators are supposed to be process experts who focus on the details of the process. Therefore mediators are given the opportunity to suggest process improvements to the EEOC. The answers to this question are divided into 67 codes that entail over 700 separate responses for improving the process. Of the 706 responses to this question, 44% focus on pre-mediation elements, 24% relate to hygiene factors (described below), 13% to improved or continuing training and communication issues, 9% to compensation/monetary issues, and 13% to other process improvements.

Many mediators feel that there needs to be a focus on more pre-mediation elements. Twenty percent of the mediators suggest that improvement of the mediation preparation of the parties is necessary to ensure that the parties have a better understanding of the process and a more realistic set of expectations and understanding of their role in the mediation process. Some mediators (12%) say there should be a decrease in the amount of pre-mediation paperwork. Mediators also feel that it is necessary to improve the participant screening process to exclude certain parties, cases, and government entities (9%). In addition, some mediators would formalize the process by using pre-mediation briefs or other written documents (2%).

Twenty-four percent of the mediator responses regarding process improvement focus on "hygiene factors." These factors are environmental and situational variables that contribute to the overall mediation experience. Thirteen percent of the mediators suggest improvements, such as better caucus space, free parking, and provision of pens, pads, better computers, and flip charts. Other "hygiene suggestions" include better clerical help (6%), shorter evaluation forms (2%), and better timing for the scheduling of the mediation (1%).

Training and communication issues are on the forefront of 13% of the mediators' agenda for process improvements. Suggestions include providing continued training for internal mediators (4%) facilitating dialogue and interaction among mediators to strategize on tough cases (4%), providing training for parties on confidentiality and legal requirements (2%), training for mediators on worker's compensation law and its relationship to EEOC charges (1%), and training for repeat respondents (1%). Communication issues focus primarily on keeping contract mediators in the loop (1%).

Nine percent of the mediator suggestions involve compensation/monetary issues. These include paying the mediator (4%) budgeting more dollars for mediation (3%), and charging parties a fee (2%). In particular, many of the pro bono mediators make the connection between more support for hygiene factors and the added burden of not being paid. Some point out that they assume many personal costs in addition to working for free.

Other process improvements recommendations include requiring a lawyer(s) to prepare better (1%) guidance from the EEOC headquarters (1%), providing pro-bono lawyers for parties (1%), and providing standardized settlement agreement language. Table XIX presents the various mediator suggestions regarding the process improvements.

Table XIX
Mediator Suggestions Regarding the Steps the EEOC Could Take to Improve the Mediation Process

Responses	Frequencies		Percentages*
Pre-Mediation Elements
Mediation Preparation of the Parties	144		20.4%
Decrease the Amount of Pre-Mediation Paper Work	82		11.6%
Participant Screening	61		8.6%
Pre-Mediation Briefs or Other Written Documents	13		1.8%
Give the Case Information to Mediators Earlier	7		1.0%
Total for Pre-Mediation Elements	307		43.5%

Hygiene Factors
Better Caucus Space, Free parking, and Provision of Pens, Pads, Better Computers, and Flip Charts, etc	93		13.2%
Provision of Better Clerical Help	44		6.2%
Shorter Evaluation Forms	15		2.1%
Better Timing of Mediation (Start Earlier, Avoid Fridays, Etc.)	7		1.0%
Total for Hygiene Factors	159		23.6%

Training And Communication Issues
Training for Internal Mediators	29		4.1%
Facilitating Dialogue & Interaction Among Mediators to Strategize on Tough Cases	29		4.1%
Training for Parties on Confidentiality and Legal Requirements	16		2.3%
Training for Repeat Respondents	6		0.9%
Training For Mediators on Worker's Compensation Law and its Relationship to EEOC Charges	4		0.6%
Keeping Contract Mediators in Loop	6		0.9%
Total for Training and Communication Issues	90		12.7%

Compensation and Monetary Issues
Paying the Mediators	29		4.1%
Budgeting More Dollars	20		2.8%
Charging Parties a Fee	12		1.7%
Total for Compensation and Monetary Issues	61		8.6%

Other Process Improvements
Certifying Mediators	4	0.6%
Lessening the Pressure for Settlement	4	0.6%
Providing Parties with an Options Checklist	5	0.7%
Requiring Attorneys to Prepare Better	8	1.2%
Guidance From the EEOC Headquarters on Rules that Impact the Substance of Mediated Issues	7	1.0%
Providing Pro Bono Attorneys for Parties	6	0.9%
Providing Standardized Settlement Agreement Language	6	0.9%
Providing More Mediators	5	0.7%
Permitting Mediators to be More Evaluative in Caucus (Of Incorrect Positions)	4	0.6%
Limiting Attorney Participation	4	0.6%
Disallowing Parties from Taking Notes	4	0.6%
Other	32	4.5%
Total for Process Improvements	89	12.6%

Grand Total Number of Responses	706		100.0%
Total Number of Cases	2062
Responses as a Function of the Total Cases			34.2%

Note: The percentages given are a function of the total number of responses, unless otherwise noted.

The following are random mediator comments selected to provide the reader some insight into the mediators' comments. They are not representative of all mediators, or representative of the major areas where improvement is suggested. We again note that we have 67 separate codes identifying ways to improve the process.

"Provide contract mediators (statistics) information about a) EEOC settlements (amounts); b) court rulings in different districts (how judge rules for plaintiff, how much etc.), c) what percentages do what if mediation fails."

"Provide some mechanism to have each party provide a written summary of their position regarding the matter and what they may be seeking to resolve the matter. This would help the mediation to develop, hopefully, effective strategies to and in the mediation."

"Omit governmental entities from the mediation process. The final authority to settle often times rest with elected and/or appointed officials who must vote on acceptance. The representative often times does not have final authority to settle the case."

"It is difficult as a mediator in private practice to handle many of these cases Pro Bono. I spent about 12 hours on this case, purchased refreshments, made long distance phone calls and arranged hotels for out of town parties. Parties, especially defenders can afford to compensate the mediators and should do so."

"Promote more interactions and meetings among mediators. Provide more education for mediators."

IV. Conclusions

Our research on mediator feedback on the EEOC mediation program provides a wealth of information about the variables that define success and failure in mediation. We are learning how the mediators view the parties' conduct, the dynamics of the mediation process, and the outcomes. The conclusions of this research are the following.

Most of the mediation sessions conducted on the day of the survey are initial sessions involving the dispute. On an average, the mediation sessions last for about 3.66 hours and in the majority of the cases, they result in the resolution of the charge.

The most significant participant conduct that leads to the resolution of the charge is the parties' flexible and open attitude, which in turn translates into their willingness to collaborate and compromise. Good mediation skills, such as the willingness to reflectively listen, demonstrate empathy, and engage in open communication, are also important for resolution.

Parties' legal and non-legal representatives also help to resolve disputes by providing the needed dose of reality and by being flexible, compromising, and supportive. Their preparation and their professional and calm demeanor also help in dispute resolution.

Mediator conduct is absolutely vital to the resolution of the dispute. Through the use of facilitative and evaluative techniques, the impact of their personal style, and the use of other strategies and tactics, mediators facilitate conflict resolution. Their facilitative behaviors, such as facilitating catharsis, reframing issues, helping parties see different vantage points, clarifying ideas, and defusing negative emotions are important to resolution. Similarly, their encouragement of open, honest, and direct communication between the parties, their ability to keep the parties focused on the task at hand, and their promotion of a "win-win" solution also play a role in facilitating resolution. Mediators' use of evaluative behaviors, such as providing the needed reality check, evaluating the strengths and weaknesses of the case, and providing the technical knowledge and expertise, is also instrumental in the resolution of the charge. Mediators' personal style also makes a difference. Their calm and professional demeanor, empathy, persistence, neutrality, optimism, and creativity contribute to the resolution of the charge. The effective use of caucuses is another mediator strategy that facilitates resolution.

The turning points of mediation are mainly related to the communication and discovery of information obtained at mediation, parties' attitudes, the specific aspects of the conveyed offer, mediator behavior, lawyer and non-legal representative behavior, and acknowledgement of feelings and culpability. The most significant turning points are related to communication and discovery and party attitudes. Communication and discovery related issues, such as changes in party behavior as a result of information obtained at mediation, well thought out opening statement, and pre-mediation dialogue, serve as important turning points during mediation. So do attitudinal variables, such as parties' openness and willingness to compromise, their trust in each other, and their flexibility. Reasonable initial exchange of offers and the communication of the final offer also serve as turning points. The "reality-check" offered by the mediator and other representatives is also a turning point and so is their support and encouragement to settle. The parties' acknowledgement of each other's feelings and culpability also make a positive difference.

The position/conduct of the parties is the main reason listed for the non-resolution of the charge. In many instances, mediators hold both parties equally responsible for non-resolution. The main behavioral attributes that interfere with the resolution of the charge are the parties' unrealistic/unreasonable evaluation of the claim, their inflexible behavior, and their adversarial and emotional attitudes. Thus, the data support psychologists' observation that "positive illusions,"^¹⁸ such as unrealistic optimism regarding one's claim, exaggerated perceptions of control, and inflated positive views of ones' self, interfere with conflict resolution.

Most of the mediators do not answer the question regarding what they would have done differently to improve the resolution of charges. Perhaps this is an indication that they tried everything they knew to seek conflict resolution and they could not have done anything more. Of the mediators who answer the question, the majority state that they would engage in a more comprehensive pre-screening process. Many would prepare the parties more thoroughly to ensure that they are willing to negotiate and bargain. Some would engage in a more comprehensive pre-mediation screening of cases to exclude certain respondents, such as government respondents and repeat respondents. Some other mediators would change their strategies and tactics, such as give a stronger dose of reality testing, use caucuses better, and engage in more intense probing.

Mediators are asked to evaluate the skills of the parties' legal and non-legal representatives. The mean rating for the skills of the charging parties lawyers is 3.63 and respondents' lawyers is 3.85 (on a scale from 1 {minimum skills} to 5 {excellent skills}). Thus, mediators seem to rate the lawyers of the respondents more highly than those of the charging parties. The non-legal representatives of the parties seem to fare worse. Mediators give a 3.05 rating to the non-legal representatives of the charging parties and 3.46 to those of the respondents.

Mediators are asked to provide suggestions regarding the steps the EEOC could take to improve the process. The majority of the mediators do not answer this question. This is consistent with our participant (charging party and respondent) study where the majority of the participants did not offer any process improvement suggestions. Of the mediators who answered, many suggest improvement of the pre-mediation elements, such as preparation of the parties, pre-mediation screening, and use of pre-mediation briefs. Others suggest improving the "hygiene elements," such as better caucus space, free computer, and more clerical help. Mediators also suggest improvements, such as continued training for internal mediators, facilitation of interaction among mediators, and education of parties regarding confidentiality and legal requirements. Other suggestions include compensation related issues, such as mediator pay and more money for mediation, and other process improvements, such as better attorney preparation, mediator certification, and provision of more mediators.

V. Implications

The mediators' perspective on these mediations is rich in data and implications. Given the amount of information that we have accumulated, it is rather difficult to analyze it fully and present all the implications of that information in a single report.

Several conclusions of the study have clear implications, which are given below. The items listed are not in order of importance, as it is rather difficult to do.

Pre-mediation activities â Cases should be carefully screened at intake to ensure that they are right for mediation. Upon assignment, mediators can use pre-mediation activities to ensure that a party understands how mediation works, brings a needed representative, possesses or brings authority to settle, knows where to find the final decision maker if necessary, brings an important witness, witness statements or documents for cases where this will make the difference; budgets the correct amount of time, prepares a powerful opening statement, or does not alienate the other party by particular conduct that is damaging to the process. Mediators can also use other pre-mediation activities that will predispose the parties to resolution. Pre-mediation preparation does not have to be lengthy and can often be accomplished by two short phone calls. However, it is similar to the five-minute physical checkup that can sometimes reveal more complex problems.

The importance of flexibility and openness â When the parties are willing to stay flexible and act in a straightforward and open manner with the other party, the disputes have a much better chance of being resolved. While this is a complex area that involves an individual's underlying skill sets, emotional characteristics, and other psychological and social behavior, this conduct is key to getting a resolution.

Preparation â It is clear that when parties are prepared for the mediation, they have a better chance of obtaining a resolution. When there is a combination of pre-mediation activity and party preparation, there is better quality mediation.

Empathy/Apology/Remorse â In a significant number of cases a respondent's apology, expression of empathy or remorse makes a difference.

The mediator tool bag â There are certain tools that mediators report assist in obtaining resolution. Prevalent tools include the use of a reality check, a caucus, facilitating communication, and the mediator's demeanor (persistence, optimism, etc.) Active listening is also important. It is clear that the mediator is often relied upon by the parties to provide technical, legal, process, or other guidance and that this guidance makes a difference.

"Just mediating" â When we use the term "just mediating" we find that for all of the skill and preparation that can ensure a successful mediation, just getting the parties in the room can bring about resolution. Here we rely on our "turning point" question. We found that the most significant turning point was that parties learned something new, i.e., they picked up something that they did not know before that facilitated a resolution. If the parties are willing to talk in the same room information is almost always exchanged and this is the key to resolution.

Reinstatement â It appears that if a charging party is seeking the remedy of reinstatement at mediation this often blocks resolution.

Role of Counsel - Respondents seem to have an advantage over the charging parties with regard to the skill level of their representatives. Attorneys seem to have an advantage over other representatives. These results indicate that a program to provide legal representatives to charging parties may benefit the mediation process by leveling the playing field between those who have counsel and those who do not.

External factors â A small but important number of cases are doomed to fail at mediation due to complex external factors over which the parties or mediator could exercise little control.

Hygiene factors â Mediators identify numerous hygiene factors that would improve the process. This is important because there are many factors that affect mediation that the EEOC cannot control such as party and attorney preparation, emotions, external factors, and other issues that affect mediation. The one element that the EEOC can control is the hygiene factors such as the size of the room, caucus space, a wall between mediation and other EEOC functions, physical tools, and compensation.

Our discussion on implications is not meant to be all encompassing. We encourage the EEOC and the mediators to read our report and to glean other factors and information that can improve this important process.

Appendix A

MEDIATOR - MEDIATION RESULTS SURVEY

We are independent researchers (college professors) working under a grant competitively bid by the EEOC. Your assistance in completing this survey will allow us to fully analyze the EEOC's mediation process. In addition, this information will allow the EEOC to determine the type of training programs and other support that can be provided to mediators. Please return the survey to us in the enclosed envelope.

Is this the first time that you mediated this dispute with the parties?

YES NO

If you answered "YES", please answer a â d below. If you answered "NO" skip to question #2.

a. How many separate days have the parties met before?

b. How long were the mediations on each of these earlier days?

c. Where these prior mediations held on consecutive days?

YES NO

d. If "NO" was there a reason that the mediation did not continue on consecutive days?

How long did today's mediation last?

3. Was there a resolution of this dispute?

YES NO

IF YOU ANSWERED "YES" SKIP TO QUESTION # 8

IF YOU ANSWERED "NO" ANSWER BELOW (#4-#7):

4. If the dispute was not resolved, list and explain in detail the 3 main reasons why you believe that no resolution was reached. (explain in detail)

5. If the dispute was not resolved, please describe any conduct that you think interfered with the reaching of agreement engaged in by:

A. The Charging Party:

B. The Charging Party's attorney or other representative:

C. The Respondent:

D. The Respondent's attorney or other representative:

6. If the dispute was not resolved please list the five most important barriers to resolution. List in order of importance with #1 being the greatest barrier to resolution.

7. Now that the case is completed, is there anything that YOU would have done differently to enhance the chances for agreement? Please describe in detail.

8. If the dispute was resolved, describe the conduct you believe facilitated resolution by:

A. The Charging Party:

B. The Charging Party's attorney or other representative:

C. The Respondent:

D. The Respondent's attorney or other representative:

E. By You as the mediator:

9. In addition to your answer at 8E above, were there any particular mediation tactics that you used as the mediator to facilitate resolution.

10. If attorneys or other representatives were involved in this mediation please rate the dispute resolution skills of the attorneys on a scale of 1 to 5 with "1" being minimal skills and "5" being excellent skills:

CHARGING PARTY'S ATTORNEY:

1 2 3 4 5

minimum excellent

skills skills

RESPONDENT'S ATTORNEY:

1 2 3 4 5

minimum excellent

skills skills

CHARGING PARTY'S NONLEGAL REPRESENTATIVE:

1 2 3 4 5

minimum excellent

skills skills

RESPONDENT'S NONLEGAL REPRESENTATIVE:

1 2 3 4 5

minimum excellent

skills skills

11. List and explain anything that you think the EEOC could do to improve the mediation process?

THANK YOU!

(A REMINDER - HAVE YOU COMPLETED THE COMPREHENSIVE MEDIATOR BACKGROUND/STYLE SURVEY? PLEASE MAKE SURE THAT WE HAVE YOUR SURVEY ON FILE.)

1 We use the term dispute in this report instead of charge because while the EEOC mediation program involves the mediation of an enumerated charge citing violations of the law we found that the actual mediation often addressed disputes which encompassed more than the face of the charge.

2 While we may use words like "interfere" when we discuss why a mediation did not result in a settlement we do not make any value judgments as to whether the underlying conduct was correct or not.

3 In designing this study the authors noted that prior studies were not successful in the use of a follow up component wherein the parties were surveyed weeks or months after the mediation. In particular, such studies had a high nonresponse rate which causes one to question whether the responses are representative of the entire class of mediation participants. We chose to record the parties' feedback at the mediation for maximum feedback. Without doubt, a follow-up study would add an additional perspective and can be conducted â but we predict that it will have a significantly lower participant response rate.

4 The number mentioned here 2062 is the total number of cases since some mediators have conducted multiple cases the actual number of mediators in the study is less than 2062.

5 In our first study we reported that the EEOC staff mediators were almost always rated higher by both parties. Moreover, these higher ratings were statistically significant for 2 areas: prompt scheduling for both charging party and respondent and the development of realistic options for charging parties. An Evaluation of the Equal Employment Opportunity Commission Mediation Program, Table XV, p.77.

6 This is due to an EEOC funding problem for the services of paid external mediators at the time of this survey.

7 For many mediations not all parties were represented.

8 Baruch Bush, Robert A. and Folger, Joseph. P. (1994). The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition. San Francisco: Jossey-Bass.

9 Domenici, Kathy. (1996). Mediation: Empowerment in Conflict Management. Prospect Hills, IL: Waveland Press & Schwerin, Edward W. (1995). Mediation, Citizen Empowerment, and Transformational Politics. Westport CT: Praeger.

10 We note that we placed respondent recognition of risk and legal expenses in the attitude category but it could be argued that this could be placed here as well.

11 Although this variable is related to both "communication" and "attitudes," it is recorded separately. We note the debate in the literature regarding the role of apology in mediation. (See Levi, D. L. (1997). The Role of Apology in Mediation, New York University Law Review, Lexis-Nexis, 72 N. Y. U. L. Rev. 1165.)

12 Tavuchis, Nicholas. (1991). Mea Culpa: A Sociology of Apology and Reconciliation. Stanford. Stanford University.

13 While we use the word "culpable" we are not taking any position as to whether the conduct of the party was correct or not. Rather we are trying to attribute the nonresolution to a party without value judgment.

14 Once again we do not make any value judgment or take any position as to whether this conduct is correct or not. We merely identify it.

15 The low level of intelligence of the charging party was placed in this coding category but will be teased out in future analyses.

16 This measure could probably be combined with the lack of respondent authority measure.

17 It should be noted that a seasoned negotiator often uses the excuse of lack of authority to test the opposing side, or to engage in other tactical conduct to forestall a decision at that moment. Thus, we do not know whether the claim of lack of authority was presented truthfully. That said, we did note that there were many mediations where the parties appeared to make significant progress but the respondent representative had not prepared the chain of command for the range within which settlement could be achieved.

18 For more detailed information on "positive illusions," please refer to Birke, R. & Fox, C. R. (1999). Psychological Principles in Negotiating Civil Settlements. Harvard Negotiation Law Review, Lexus-Nexis (4 Harv. Negotiation L. Rev. 1)

This page was last modified on February 20, 2003.

Breadcrumb

The EEOC Mediation Program: Mediators' Perspective on the Parties, Processes, and Outcomes

TABLE OF CONTENTS

PREFACE AND ACKNOWLEDGMENTS

a. Facilitative Conduct

b. Evaluative Conduct

c. Personal Style

d. Other Conduct/Tactics

a. Charging Party Behavior that Interferes With Resolution

b. Charging Party Representative Behavior that Interferes With Resolution

c. Respondent Behavior that Interferes With Resolution5>

d. Respondent Representative Behavior that Interferes With Resolution

Conduct of the Legal and Non-Legal Representatives

the Respondent

Sectional Total

Grand Total Responses

Total Unresolved Cases

H. Mediator Suggestions for Process Improvement