SO, here I am on yet another airplane. This time I’m headed to Tampa, Florida for a four day mediation stint across the state with events in Miami, Fort Lauderdale, Fort Myers and West Palm Beach. I can’t help but wondering, “Why me?” For that matter, “Why is any particular mediator chosen?”
Having had a full time mediation practice for now over 17 years and at times working in three states simultaneously, the questions repeat themselves frequently. “Why me?”; “What makes me the mediator that I am?”; “Just what is a good mediator?” The root question here is:
Why does someone choose a particular mediator?
Firstly, and perhaps most importantly, is trust. When lecturing I often point out to counsel that if you or your client don’t trust your mediator, find another. Harsh perhaps, but I can’t emphasize it enough. If you don’t trust your mediator how are you or your client ever going to listen to what he or she says, or how much weight are you going to give their suggestions, thoughts and comments (which you will no doubt solicit throughout the process)? How a mediator builds trust is another story altogether.
A mediator has to establish trustworthiness through their actions. Follow through; Ask questions; Respond to questions. I’m not necessarily speaking here about actions during the mediation itself but in the initial conversations and communications that you may have in advance of the mediation, or even in advance of your being considered for any mediation. Follow through with any contact that may be made or that you initiate. I can’t count the number of times that I have heard complaints from mediators that they are not getting any work when they have not taken the basic steps or extended the basic courtesies of maintaining good, timely and thorough communication with prospective clients.
What many mediators do not realize is that it is these contacts that begin to establish and create trust. These activities and actions are how we find out about each other and our thought processes. It’s also a means by which we convey just what our knowledge base is in varying subjects. More than that, it establishes what our personalities are like.
I routinely tell mediators that “There are cases that I can mediate that you can’t, and there are cases that you can mediate that I can’t.” This statement has nothing to do with knowledge in any particular subject matter nor any given level of experience. It comes down to our subjective personalities. If the mediator and the attorneys or more importantly the parties at odds don’t get along or are not comfortable on a basic level, the likelihood is that they will never develop trust in the mediator. A particular party may connect better with a man or a woman, a lawyer or a non-lawyer, a native Arizonan or a mid-western transplant. It could be anything. But that connection based on personality is invaluable and goes a long way to establishing trust.
From a business standpojnt trust is important to the parties as it saves time and saves money. If trust is established early on in the process that is one less hurdle that has to be crossed in an effort to bring parties to reason and resolution. Another time perhaps I will address the weight and obligation that we as mediators bear when having this trust placed in our hands. Suffice it to say that the burden placed on us is no less than that which a party in dispute has placed on their legal counsel. A phrase that I like to use is that: “We, as mediators, are the Stewards of the Confidences of the Parties”.
What makes a “good mediator” is truly a loaded question and often depends on who is asking it.
There are those attorneys who say that a good mediator is one that emphasizes their position with the other side, or is a real “arm twister”. Others will say that a good mediator is one who assists the parties in making their own decisions as to how the dispute should be resolved, or is wiling to stay in the game no matter how long or how many hours it takes. Still others will say that an evaluative mediator who works through liability, risk, costs and potential outcomes is the best. The point here is that the term “good mediator” is a moving target, depending on who you ask and under what frame of reference they may be responding to the question.
As a professional mediator, I will submit that a “Good Mediator” is one who: listens to the parties spoken words as well as the unspoken; gives due concern to the parties’ senses of feeling, emotion and justice; keeps the parties informed and involved in the process from the time of the opening statement through the conclusion of any caucus; who remains engaged with the parties for the entire duration of the mediation, and; who does not interject the mediator’s own will, thoughts or senses of right and wrong, but instead establishes the trust of the parties and guides the parties through their own decision making process to reach the decision that is right for them.
When training mediators, this last thought has been the most revealing. Often there would be a judge or retiring judge in the training class. They would often speak up and espouse their vast and varied knowledge about the subject in litigation, as well the “rights and wrongs” of the parties. They would “assist” the practice session litigants with their opinions as to what likelihood of success they would have with their positions. My two routine comments to such things often left them flabbergasted.
Firstly, this is a mediation and not an arbitration. We are not acting as triers of fact so we should not be making any decisions. We should not be strongly advising the parties of any likely outcome, right or wrong. How we feel or what we think does not matter. Not that we could not act as arbitrators if called on as we often are. But when we are asked to mediate it is not our job to tell any participant how a case should be resolved. Perhaps at best we would question participants what they felt the outcome would be as a means of assisting them in reaching a decision. Which leads to my second and perhaps more poignant comment.
We will on occasion assist people in making what we personally feel are bad decisions.
Before you react, let me explain. Some times people need a result that is not what we as mediators or counsel may personally feel is the best for them. Let’s say that you are mediating an “auto case” and the parties are negotiating over the dollar value of the claim. The plaintiff is clearly distraught at having heard the accusations of the defense about the plaintiff’s own negligence causing the accident, and has made comment that at no time had the defendant ever apologized for the accident even occurring. They have also said throughout your contact with them that no amount of money can cure this fact. They direct their attorneys to make large demands.
The offers being made are minuscule when compared to these demands and the insurance adjuster is starting to make innuendo that they will be “packing up” and ordering their counsel to prepare for trial. You sense that there actually is more money that will likely be offered later in a subsequent mediation or perhaps at trial, maybe even later that day if the plaintiff can hold out. You sense that there may actually be a substantial amount left to be negotiated if you could just break through.
Suddenly the adjuster offers to you a passing apology to the plaintiff for the accident, perhaps with your assistance. When you convey this to the plaintiff, you see a noticeable change in demeanor. Not only is the next demand given low, it is somewhat against the plaintiff’s attorney’s advice. The plaintiff insists as they need closure to heal and need it now. You convey the demand and low and behold, the case ultimately settles. The amount being settled upon is less than you thought would ultimately be offered.
The litigants are the parties truly in interest, with their counsel’s assistance and guidance. They and their opinions are what truly matters. Sure, perhaps they could have settled for a larger amount had you continued working the case. But what was more important was the apology and closure, and the plaintiff was completely satisfied with that. You can change the facts in this hypothetical around but hopefully you understand the intent of this point. We as mediators do not decide for the parties or their counsel when to hold and when to fold, or what is the right manner in which to settle.
This is not to say that we should not take an active role assisting parties or making suggestions and why trust is key. Perhaps it is better to restate the facts of what is known and has been shared during the mediation to help the litigant and counsel do their own evaluations. Pose questions to them that make them process and decide. Point them in a direction, but let them follow the path only as long as they are comfortable with it. When you have established the trust of the parties, they will listen to and process your thoughts and questions without simply dismissing them off hand. They will think, process and make their own decisions.
If a mediator does not make suggestions or impose their own thoughts, then what do “good mediators” do?
It is truly a fine line between not assisting enough and imposing our own thoughts. What mediators should not do is simply take what one side says to the other, without more. You are doing nothing more that playing the game of telephone that we learned as children in grade school. You are doing nothing more than what the attorneys or the parties themselves could have done on their own. You are certainly not establishing the trust of the parties.
A good mediator will ask questions. Lots of questions. While training Foreclosure Mediators in Oregon recently I made that statement no less than 13 times in one session (as reported to me by one participant with a smile). Again, a point that cannot be over-emphasized, is that it is through the use of proper questioning that we can “direct” parties in their own search for closure and resolution. A question will plant a suggestion; it will give people a reason to pause and reflect; it will help them develop their own sense of participation; the answer will help us to determine what is really being sought. A key element of this is having the trust of the parties to enable you to ask such questions. When you have established the trust of the parties they will tend to consider the questions you pose more deeply than without it, if at all.
Answers to questions that we ask also help to educate us. It helps us to decipher just what each party hopes to gain and what is important to that party. In addition, it helps to
educate us about the claims involved themselves, as we may or may not have a given level of expertise or experience in the subject matter involved. Again, if the parties trust the mediator they will readily answer questions asked and discuss amongst themselves the effects or ramifications of those responses. Establishing trust actually helps us to do our job.
One last comment on questioning - a mediator must be careful to avoid asking questions in such a manner as to impose their own feelings on the party or counsel, for business as well as ethical reasons. If a party accepts a position or belief based upon a mediator’s questioning, and ultimately settles based upon what they at the time perceived as their own idea there will certainly be “buyer’s remorse,” and perhaps a grievance in their (and your) future. This is not the way to establish trust and a sure way to destroy it. This will obviously involve their counsel as they will have to clean up the mess that you created, which will not only relate to less work from that attorney, but that attorney may respond to another attorney asking about you to chose another and so on. You simply cannot afford to impose your will on the mediation participants. While the trust of the participants is key, it is not to be taken lightly.
The answer to all of the questions which I posed when starting this article, I guess both starts and ends with trust. A good mediator is one who is able to establish the trust of counsel and the participants, and does not take that trust for granted.