I think that the field of mediation lacks a serious commitment to any systematic study and rigorous evaluation of what mediators do when they mediate. There is no data to support an assertion that any particular strategy or behavior engaged in by a mediator has any effect on the behavior of the participants or the outcome of their negotiation. Moreover, I am unaware of any set-pieces, akin to plays on a football field, that mediators use again and again that have been tested to determine if they correlate, much less cause, any particular behavior or outcome.
What there is in abundance is a literature filled with stories told by mediators who claim to have found the truth when what they really want is recognition or to gain a competitive advantage in the marketplace; likewise, with workshops and seminars that infer that something a mediator does (or should do) actually causes people to behave differently while participating in a mediation.
We need not stay stuck in this dark cave. A huge volume of mediations happens everyday. These sessions offer sociologists, psychologists, legal scholars and academics and others a laboratory to observe and study mediators’ actions while they work with real people involved in real conflicts.
Mediation confidentiality serves an important purpose but it need not be an iron current. All that typically emerges from a mediation is a written agreement. Lost is the opportunity to work out the conditions under which a particular strategy might actually work and the inferences that might reasonably be reasonably drawn from that analysis. Also lost is the opportunity to examine the inferences people actually have drawn from it under different conditions, what they thought it implied and what it inspired them to do. This process can reveal intriguing intellectual and practical possibilities that mediators might otherwise overlook. Researchers routinely observe, study and gather intimate information from people while successfully guarding their privacy.
The judicial system has a vested interest in understanding and improving the efficacy of the mediation process, inasmuch as judges compel people to participate and pay for it. I think that a carefully drawn provision carving out an exception to confidentiality that allows for the scientific/academic study of mediation would be a great benefit for both mediators and those who participate in the process.
I, for or one, would like to know if what I do really works or not and why.