I believe the following mediator qualities, which I bring to every mediation I handle, are essential in maximizing the potential for resolution:
In addition to my mediation experience, my 25+ year consumer education, banking experience and debt counselling background covers an extremely broad range of substantive areas, on behalf of both plaintiffs and defendants. Although I believe that a good mediator doesn’t necessarily need subject matter expertise in every case he mediates (with the exception of divorce mediation, which I do not handle), I also believe that substantive experience in the type of dispute at hand does help.
It is critical for the mediator to thoroughly understand the facts, the issues, and the needs and interests of the parties to the extent possible before the in-person mediation begins. I do this by requesting and reviewing Mediation Briefs, and by pre-mediation phone calls with the attorneys (or self-represented parties). By the time we actually meet in person I’m ready to hit the ground running.
I firmly believe that every dispute can be resolved, and I bring a sense of optimism to each mediation I handle,” no matter how challenging the situation.) From the outset, I ask the parties to join in that optimism, and I have found that this attitude often becomes a self-fulfilling prophecy. Throughout the process, particularly if it appears that resolution may be challenging, I continue to remind the parties of the progress that has already been made, to not get discouraged, to remember the reasons that they chose to participate in mediation in the first place, and to continue to have faith in the “magic” of the process.
Disputes – especially those that have already resulted in a lawsuit – are difficult to be involved in, and it is human nature for there to be tension among the mediation participants. A little well-timed and respectful humor (such as an appropriate quote from my all-time favorite lawyer movie, My Cousin Vinny) can go a long way to “break the ice” and to promote a productive dialog.
A mediator must never succumb to frustration or impatience, no matter how difficult the situation, or how long it takes to get the job done. Instead, a mediator must be sensitive to the needs of the participants, and to gently and respectfully move the process forward toward resolution. Each mediation develops its own “rhythm,” and it can be counter-productive to disrupt that “rhythm” by becoming impatient with the participants or the process.
Calvin Coolidge said, “Nothing in the world can take the place of Persistence.” Winston Churchill said, “Never, never, never, never give up.” They were both right. No matter how talented the mediator, it is often sheer persistence that brings matter to closure. Although it is by no means the norm, I have had mediations go from 9:00 a.m. to 6:00 a.m. the following morning before all settlement terms were reached and a final written agreement was signed. The same persistence is necessary in those situations in which resolution is not reached during the initial session and follow-up work is necessary. I will not stop in my efforts to help the parties reach resolution until the matter is resolved, or until the parties withdraw from the process. A mediator cannot be persistent in follow-up if he isn’t available to follow up, which is why I always reserve time every week for this purpose.
I don’t believe that a “cookie cutter” approach to mediation is appropriate. Each dispute has its own unique issues, and each participant has his or her own unique needs. I believe a mediator must adapt his approach accordingly. Similarly, once a mediation has begun, a mediator should also be sensitive to the need to adjust approaches that have been taken but which may no longer be appropriate.
Mediation provides the parties with a unique opportunity to craft a creative outcome to a dispute in a manner that could never be obtained by court judgment. I believe a mediator must always “think outside the box” (to use an overworn expression), and be open to creative ways to resolve disputes that might not be apparent from the start. I sometimes tell the story of the little boy and his sister fighting over the orange, who take the orange to their mother to resolve the dispute. When I ask mediation participants what they think the mother did, the answers range from, “She cut it down the middle” (i.e., she “split the baby”), to “She ate it herself” (which we refer to as a “lose” – “lose”). I then tell the participants that, if the mother had known that the little boy wanted the inside in order to make orange juice, whereas the little girl wanted the skin in order to make orange zest for a cake, she would have known that each could have had his interests met by letting the boy take the inside, and letting the girl take the skin (what we refer to as a “win – win”). In mediation, the parties have the ability to craft creative outcomes in a way that a judge or jury can’t, and the mediator must remain open to the possibilities.
I believe a mediator must always be sensitive to the needs of the parties, both with regard to the underlying dispute and with regard to how the mediation is conducted. Aside from always treating the parties with respect, a mediator should also always be sensitive to the verbal and non-verbal cues that arise during the mediation process – which necessarily means that a mediator must be a good listener.