I recently ran across an article on Mediation and the qualities of a Mediator I found both interesting and, from my experience, spot-on accurate. As a mediator, I am often told by the
parties and attorneys that they appreciate the patience and respect I show them during our Mediations. . .like being a trial judge, as I was for almost 18 years on the Maricopa County Superior Court bench, a good Mediator learns early-on that being patient and respectful to people is not only a skill your Mother expected you to learn (never mind the Nuns !) but one that is key to being shown respect in return and the participants having an interest in hearing what you have to say. As a trial judge, I participated in hundreds of settlement (mediation) conferences and learned the lesson first-hand.
I thought the article, additionally, made a key-point I learned from actual experience participating in a mediation with a friend who was the litigant. The point? "Expertise" in an area of law without good "process" skills won't make a successful Mediator; the article pointed out:
"Keep in mind, however, that subject matter expertise without adequate process skills will not make a person suitable to be a mediator."
So, without further delay, here is a portion of the article about Mediators and I encourage all practitioners to consider copying/reviewing the entire article for some very good tips on preparing your clients for Mediation:
CHOOSING THE MEDIATOR
The success or failure of a mediation often depends on who the mediator is. Before retaining a mediator you should find out as much as you can about his or her qualifications and methods. Then evaluate the mediator in light of each of the factors discussed below to see if he or she is right for your case.
Style. It is often said that there are two kinds of mediators: facilitators and evaluators. Facilitators promote communication between the parties in order to help them reach a mutually acceptable resolution. The pure facilitator refrains from expressing any opinion on the merits of the case. Evaluators will express an opinion on what a case is worth or at least on the merits of positions. The best mediators will use an approach that draws upon both styles as the needs of the case require. A mediator should not, however, predict the outcome of the case in court or purport to advise a party what to do.
Familiarity. There is sometimes a misconception that the mediator should not have had any prior relationship with the parties or their counsel. Although the proposed mediator should disclose any such relationships, no ethical rule precludes the use of a mediator who knows or has dealt with one or more of the participants. Many litigators believe that the best mediator to use is the one that the other side knows and wants since the mediation is more likely to succeed if the adversary trusts the mediator.
Focus on Settlement. Being an effective mediator often requires an extraordinary amount of patience, and many cases will not settle at the first meeting. The mediator must be prepared to follow up and to work with the parties until the case is resolved.
Subject Matter Expertise. Lawyers are generally looking for a mediator who has expertise in the type of case at hand. The lack of such expertise will create a steeper learning curve for the mediator and may put him or her at a disadvantage when trying to evaluate positions. Keep in mind, however, that subject matter expertise without adequate process skills will not make a person suitable to be a mediator.
Training and Experience. A qualified mediator will have undergone formal training in the process and have accumulated substantial experience. Subject matter expertise without formal training in mediation is generally not sufficient. Indeed, an untrained mediator may actually do more harm than good.
PRE-MEDIATION CONFERENCES
Settling cases can be challenging. Even the small cases, the ones that people tell me will be “simple,” can require an unexpected amount of time and effort. In order to make the job easier, I try to establish at the outset a collaborative relationship with counsel for the parties.
The process starts with pre-mediation telephone conferences between the attorneys and the mediator. In mediation, unlike arbitration, ex parte contacts are entirely proper. And because they are part of the mediation everything that is said is confidential.
What to Discuss. The main items that need to be covered in these conferences are some of the essential steps to success that are discussed in this booklet. They include:
Making sure that individuals with full settlement authority will be present.
Setting aside adequate time to complete the mediation.
Setting a date for the exchange of position papers.
Preparing the clients.
Preparing to make a convincing presentation in the joint session.
Talking about the process itself so that everyone will be comfortable with how it will be conducted.
Confidential Information. A telephone conference with the mediator also provides an opportunity to discuss in advance any information that would be helpful in resolving the case but that should be conveyed in confidence. Personality or emotional issues would fall into this category. The attorney may also need to ask for the mediator’s assistance in explaining the realities of litigation to the client.
The more that the mediator knows in advance the better prepared he or she will be to help settle the case. So let the mediator in advance how he or she can best help you.
HOW LONG SHOULD IT TAKE?
Not long ago, I received calls from two lawyers who wanted me to mediate their cases. One said, “We want you to set aside the entire day for this case because we really want to settle.” The other one said, “This is a very simple case, it shouldn’t take more than a couple of hours, and we should know pretty quickly whether it is going to settle or not.” Which of these cases is more likely to be settled?
The first caller was optimistic about settlement. He also realized that a successful mediation can easily take a full day and that it is unwise to set arbitrary time limits. The second caller exhibited just the opposite attitude. His message was: “We’re pretty sure that we’re right and we will mediate for a couple of hours to see if you can get the other side to agree. But after that, if we don’t like what we’re hearing then we are just going to leave.”
The “couple of hours” approach is usually not realistic. You need to come to mediation with an open mind. Perhaps there is a problem with your case that has not occurred to you. Maybe it is not as “simple” as you think. What may seem simple to the lawyers is often not so simple to the clients. The mediator will need time to explore the issues and the risks of litigation with the parties before he or she can start to guide them through the process of negotiation.
While I have had many cases that did settle in a half day, I have also had many that lasted well into the evening. Since I never know how long a case will take, I always like to start in the morning and to set aside the entire day. If we finish early that’s fine, but I don’t want to risk running out of time.
Patience is the key. If the participants really want to settle they should be prepared to spend whatever time it takes. How much is enough? Who can say that the mediation is over even if you haven’t settled? That is one of the reasons why you hire a mediator.