My client wants to go to mediation. Now what?
How do I select a good mediator? What skills should the mediator bring to the table to increase the chances that a dispute will resolve?
Maybe it will be easier to answer those questions if we first look at what the mediator should be doing at that table.
During the course of an often long day, a mediator will use a variety of skills to support, encourage and confront the participants. This will all be done while being respectful of the attorney-client relationship, but managing the mediation process and, hopefully, helping to resolve the dispute.
Mediators are neutral or at least they should be. They have to suspend their own judgments and give their full attention to understanding the individuals involved in the dispute. They must recognize and respect strongly felt values other than their own. They have to maintain trust, even as they analyze issues, explore alternatives, and even deliver bad news.
Mediators often deal with highly emotional situations and people. They ask probing questions and listen deeply. They must recognize and remember small details because, late in the day, a small detail may be the key to settlement.
Mediators have to quickly absorb nuanced and complex questions of fact and low. Just as quickly, they have to understand the people in the room, so that they can assist them through the negotiation process.
Now that we know what the mediator is doing, we can explore what qualities they need to do the job well.
In a series of studies of successful mediators and the lawyers who hired them, Stephen Goldberg, a professor at the Northwestern University School of Law, and Margaret Shaw, who is a mediator, first surveyed mediators about what they thought made them successful. In a second study, they asked lawyers to describe the personal qualities, skill, and techniques that they observed had been used to move the parties toward settlement in a recent mediation. In addition, they were asked how they would account for the mediator's success.
The lawyers reported that the most important mediator characteristics, the ones most correlated to mediator success, were a combination of empathy and authority. This combination would most likely allow a mediator to gain the confidence of the mediation participants, which in turn led to resolution.
Broken down further, the top quality of successful mediators, according to 60 percent of the lawyers responding, was that they were empathic, friendly and likeable. Fifty-three percent of those surveyed cited high integrity, as demonstrated by neutrality, trustworthiness and honesty, as a reason for mediator success. Forty-seven percent of those surveyed cited the fact that the mediator was smart, well-prepared, and knew the law as a reason for mediator success. The last two of these three categories, neutrality and knowledge, create the authority factor in the mediator success equation.
In addition, when asked to describe the process skills of a successful mediator, 35 percent of advocates mentioned persistence and patience. Thirty-three percent mentioned the ability to provide a useful evaluation of the likely outcome of the dispute in court or arbitration.
As part of their studies, the authors also asked lawyers about unsuccessful attempts at mediation. All three studies of mediators and lawyers using mediation reached the same conclusion: the most important element in a mediator's success is the ability to establish a relationship of trust and confidence with the parties to the dispute. While good process skills were important, they did not compensate if a mediator could not connect with the participants and inspire trust through their integrity and knowledge.
Considering all the skills that a mediator must possess in the course of a day, as described at the beginning of this article, it makes sense that the ability to successfully conclude a mediation must be predicated on the ability to connect and inspire trust through empathy and authority.•