A mediator is truly a neutral. Unlike other forms of ADR such as arbitration, where the arbitrator makes findings of fact and reaches a decision or early neutral evaluation where the neutral expresses a belief as to the merits of the matter, the mediator does neither. The only job of the mediator is to facilitate or bring about settlement. The mediator should only interject himself or herself in the process to assist the parties in reaching a settlement. The mediator’s agenda should not be the terms of the settlement or the amount of the settlement, but only the fact that the matter is resolved.
To many, the role of the mediator appears to be simple. However, an effective mediator needs many skills. The mediator must control the impulse to judge, to evaluate, and to decide. The mediator must use skills to promote settlement without becoming invested in the actual terms of the settlement. A skillful mediator will facilitate a settlement acceptable to all parties and will have the parties walk away believing that settlement was the best option and the result was within their control.
The role of the mediator is very different from that of advocate. While this is a simple fact, the role is often misunderstood by those individuals trying to be mediators as well as by participants in a mediation. The mediator is not a trier of fact. It does not matter whether the mediator believes one side over the other or whether the mediator would find for one of the parties. The mediator is only a facilitator and must, at all times, remind the parties of this fact.
The purpose of these materials is to identify and focus on those skills that are essential for becoming an effective mediator. Not all individuals are suited for this role. Some of the skills are innate and part of one’s personality. Many of the skills can be developed with careful attention to the goals.
II. PREPARATORY SKILLS
A. Recognition of the Process
ADR is meant to be an alternative way of resolving legal disputes short of going through the legal system to trial. It should be a cost-effective way to resolve issues.
An effective mediator will use all means to assure the parties a cost-effective process. The mediator will make sure there is sufficient time allotted for the mediation. While many think a case can be mediated in a half-day or a few hours, the skilled mediator knows it is a process, which requires time and focus. The mediator should assert control over the process by requiring a time commitment of at least one full day, requiring that the parties remain at the mediation so the process can proceed smoothly, and should hold the mediation in a place free from distractions and disruptions.
The mediator should require that all parties that are essential to resolution and who have the ultimate authority to settle are present. It is a monumental waste of everyone’s time if the person who must sign off on the settlement is not present at the mediation or is otherwise unavailable. This requirement should be stated upfront.
B. Preparation by the Mediator
A mediator should have a general knowledge of the subject matter of the dispute, if not an expertise in the area. The most effective tool a mediator has is the ability to challenge and play “devil’s advocate”. This does require knowledge of the subject matter as well as practical experience in the area of law. It never hurts to tell some war stories about litigation in order to scare parties toward settlement. A mediator who has been an experienced litigator will have credibility. However, a mediator must not forget the role he or she has is that of a neutral. The “devil’s advocate” routine is only effective if it is used with both sides. It is very easy for as mediator to slip back into the advocacy role and this must be carefully avoided.
A mediator with a working knowledge of the subject matter will also allow the parties to submit materials in a less formal and more cost effective manner. Often copies of relevant pleading along with a brief statement of the issues in dispute, settlement negotiations to date, and a statement of the respective strengths and weaknesses of each side’s positions will suffice. The mediation process requires listening to the parties state their claims and positions and have their “day in court”.
C. Commitment to Settlement
This sounds like an overstated goal. However, there are many times in a mediation when it appears the parties want to quit and walk away. The mediator must use all of his or her skills to convince the parties to complete the process. Often this is best done by reinforcing the fact that the parties are in greater control of their fate during the mediation than they will ever be in the legal system. A mediator should be tenacious toward settlement and toward helping the parties work toward their goal of mutual resolution. A mediator who feels he or she put in their day’s work regardless of whether the case settles does not have a commitment to settlement.
III. SKILLS REQUIRED DURING THE MEDIATION
A. Good Communication Skills
A mediator must be a good communicator since he or she acts as a messenger, carrying the positions, offers, and other communications between the parties. An atmosphere conducive to settlement can be created by the way in which the mediator carries the messages. A skilled mediator will be able to explain the position of the opposing party objectively, omitting any hostility that the opposing party may have voiced. The skilled mediator will carefully choose words, understanding that all impressions of the process and the likelihood of settlement are being formed from the mediator’s communications.
B. Good Listening Skills
As skilled as the mediator should be communicating with the parties, it is equally important that the mediator be a good listener. Allowing the parties to voice their complaints, concerns, hurts, and expectations is an essential part of the mediation process. To many, it is equal to having a “day in court.” Besides being cathartic for the parties, it is also valuable to the mediator to hear what the parties have to say. A skilled mediator will learn about the motivations of the parties and often, about what is really driving the conflict. That information is critical in helping to formulate a settlement that meets the parties’ needs. It is also important for the mediator to understand the dynamics of the relationship between the parties and their attorneys as well as the relationship between co-plaintiffs or co-defendants. It is not always easy to listen to people rehashing their complaints, their hurts, and their anger, but the mediator must understand the importance of this “venting” to the process and should actively listen.
There are many timed during the mediation process that the mediator will have to exert great patience. The mediator must be patient listening to the parties. Many individuals will be inarticulate, redundant and irrelevant as they verbalize their positions. The skilled mediator will patiently listen and when necessary bring the individual back on track in a direct but kind manner. There will be times when participants in the mediation will exhibit bad behavior, often out of frustration and anger. The mediator must understand this and refocus the individuals toward constructive efforts to resolve the dispute. Often, the attorneys will act in a way obstructive to the process. The mediator must understand that the attorney is an advocate and often will flaunt that role during the mediation. This is all part of the process, and it is the role of the mediator, the neutral, to patiently bring the individuals back to the real agenda- settlement. The skill of patience, which a mediator exhibits during the mediation, will greatly reinforce the neutral role the mediator plays.
D. Attuned to Needs of the Parties
Each participant comes to the mediation with certain needs that have to be met. They can be the need to tell their story, the need to walk away with a certain amount of money, or often, the need to validate their self-worth. It is an important part of the role of the mediator to ascertain and understand these needs in order to facilitate settlement. This is done through active listening and the ability to understand people. A mediator must be intuitive and attuned to the psychological factors underlying the participants’ words and conduct A successful mediation occurs when the parties have reached settlement and the participants feel good about the process. In these mediations, the needs have been met.
E. Ability to Put People at Ease
The mediator must be comfortable with the process as well as his or her role. While mediation is a very informal process, many participants come to the mediation not understanding this. They are concerned about when they should talk, if they might say the wrong thing or just general anxiety about the process. The mediator should make the participants feel comfortable from the start. This can happen when the mediator initially talks to the parties, explaining the process. The mediator should act relaxed, explain the role of mediator, and let the parties know how the day will proceed. The mediator should fully explain confidentiality. The demeanor of the mediator will set the tone for the mediation.
The mediator must be direct. The mediator is the facilitator, and in order to keep the process moving, the mediator must clearly convey the positions of the parties, the proposals for settlement and the concerns. The mediator must not be afraid to confront the parties, to challenge, and to discuss weaknesses of the cases. However, this must be done in a manner that preserves the neutrality of the mediator role. The mediator should be careful when challenging a party, not to appear as if he or she is judging the party’s position or has come to a conclusion about the merits of the case. The mediator should tell the parties again and again that he or she will be playing “devil’s advocate” to all sides because that is the value of having a neutral facilitate settlement. Also, when a party is being unreasonable or inappropriate, the mediator should deal directly with the problem in order to maintain control over the process. However, this should be done tactfully and without embarrassing any individual.
The mediator must be able to have perspective with regard to the specifics of each mediation as well as to the mediation process. While most cases will settle in mediation, there are some cases that must go to trial. Often this is because of the desire of one of the parties and their attorneys to show they can “win” or more often because one side does have a strong case and the other side is being unreasonable in its settlement demand. The perspective that the mediator must keep is to use all efforts to bring the parties to settlement, but also to know when it just won’t happen. There is a time when all efforts have been exhausted without reaching settlement. At that point, the mediator should leave the door open to the parties, to come back at a time when settlement talks will be more favorable. This can be after a summary judgment decision or right before trial.
H. Ability to Give Feedback Without Being Judgmental
A mediator must be objective for the role is one of a neutral. This is a given for mediators, but what can a mediator do to reinforce this neutrality when the role often calls for the mediator to be confrontive, challenging, and be a sounding board? With experience, a skilled mediator learns to manipulate the process without interjecting his or her personal feelings into the mediation. This occurs when the mediator truly adopts the single agenda of settlement and does not adopt the agenda of any of the parties. The amount of the settlement or the specific terms should not matter to the mediator if the parties are content The mediator should use all of his or her skills to persuade the parties that settlement is the best alternative for it is the one time the parties will have control over their fates.
I. Ability to Encourage and Aid in Resolution
The mediator must work at moving the parties toward settlement. This requires not only the ability to encourage settlement by reinforcing all the reasons the parties should take control and settle, but also by determining the needs of the parties and helping to craft a settlement that meets those needs. The mediator is the coach, assisting the parties with the “plays” or moves toward settlement. However, at all times, the mediator must keep the parties’ agendas. The only agenda the mediator should have is reaching a settlement.
Every mediation will be different because in each case, the needs of the parties will vary. The mediator should be able to help propose creative ways to resolve the dispute without becoming vested in the actual outcome. The mediator is in a unique position to know not only the position of each party but also the motivation, which underlies each position. The mediator should not be afraid to suggest creative ways to craft a settlement, not only with regard to monetary terms but also non-monetary relief. Also, the mediator may be called upon to use creative ways to conduct the mediation when there are problems with the traditional method. The mediator should always be flexible and responsive to the needs of the parties.
Empathy is a trait, which mediators should have but it should be used skillfully. The mediator should be sympathetic to the concerns of each party but should also retain his or her objectivity and perspective. Too much empathy can polarize a party back to its original position and away from a settlement mode. Not enough empathic can cause a party to view the mediator as partial to the opposite side. The mediator gives the reality check. He or she must be empathetic while driving the parties toward settlement.
L. Reinforce the Result
Once the parties have reached a settlement, the mediator can serve an important role by reinforcing the fact that resolution at this point in time is in the best interests of the parties. The mediator should congratulate the parties and their attorneys on working so hard to achieve resolution. The parties should be told that they now can move forward with their lives and focus on positive ventures. The parties should be encouraged that there is an intangible benefit to moving forward. In the ideal mediation, the parties will be able to come together and give closure to the relationship. Obviously, this is not always possible but should be attempted when the climate is right.
While many of the skills discussed above may seem obvious to the mediator that is already skilled, they pose areas that should be developed in those individuals that do not innately possess these skills. The mediator should use these skills as a checklist after each mediation to determine the areas in which he or she needs work and those areas in which he or she is already successful.