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greater the percentage of time spent in separate caucuses with individual parties, the more likely participants were to say the neutral controlled the outcome, pressured them into solutions, and prevented issues from coming out. There was also a greater likelihood that participants would return to court for an enforcement action.

pledge recognizing the value of diversity and inclusion among providers of dispute resolution services and urging law firms and counterparties to include qualified diverse neutrals on lists of proposed mediators or arbitrators; and a commitment by members of the international arbitration community to promote greater representation of women.

Other findings showed that opinion-giving and the offering of proposed solutions by neutrals were negatively associated with long-term perceptions, including participants’ view that the outcome was working and that they were satisfied with the outcome.

We have yet to develop much data respecting the differences race, ethnicity, or gender make in dispute resolution. What we do know at this point is that there remains an important disparity between the proportion of women and various ethnic groups in the ranks of dispute resolution professionals and their representation in the general population. Recent findings from the Maryland court system reinforce the notion that the racial identity of mediators may make a profound difference to participants in several ways, such as the improvement of communication between participants.

While the resulting data must be treated with caution, it does set out some new markers for thoughtful practice.

CLIENTS AND COUNSEL: WHO OWNS THE PROCESS? While there is no question that mediation has changed the practice of law, it is also clear that lawyers have had a significant impact on mediation. For example, while the IAM survey data showed a variety of reasons why mediators employ caucuses, comments by California mediators suggested that their heavy emphasis on caucus was often the result of pressure from legal advocates. As noted above, there is now evidence to suggest that an over-emphasis on caucus and on the rendering of case evaluations could actually diminish the value clients derive.

THE DIVERSITY CHALLENGE There’s been a great deal of emphasis on promoting greater race, ethnic, and gender diversity among adjudicators and facilitators of settlement. Proponents argue that diversity reduces the chance that decisions will emanate from either conscious or subconscious biases, that it enhances the credibility of the process in the eyes of participants, and even helps reduce the likelihood of “group-think.” Such concerns have inspired a diversity and inclusion plan by the ABA Center for Professional Responsibility; a CPR


TOWARD MORE DYNAMIC, TAILORED APPROACHES Some creative mediators faced with impasse invite parties to explore other dispute resolution options and even assist in their arrangement. One recent initiative aimed at promoting the use of mediation for the purpose of working with parties to promote insights into dispute is “Guided Choice,” which is characterized by a commitment to mediate process as an initial matter, confidential discussions with the facilitator to permit the latter to make a “diagnosis” of the dispute, facilitated process design and option generation based on the diagnosis, and information exchange by agreement. Contractual relationships offer a particularly fertile ground for the creation of frameworks for the management of conflict. Such opportunities have been most avidly taken up by companies that perceive important benefits in tackling conflict at its roots. There are, however, substantial barriers that stand in the way moving beyond “boilerplate” solutions and of embracing the opportunities for proactive conflict

Pepperdine Law Inside Straus Institute for Dispute Resolution  

After completing its milestone 30th year, the Straus Institute for Dispute Resolution looks forward towards a new era as a leader in the fie...

Pepperdine Law Inside Straus Institute for Dispute Resolution  

After completing its milestone 30th year, the Straus Institute for Dispute Resolution looks forward towards a new era as a leader in the fie...