Over the course of the 35 years I have spent selecting mediators, I have been careful to ask everyone I can what they consider to be the critical skill sets of a successful mediator. Interestingly enough, there seems to be a consensus among both experienced trial lawyers and the very best mediators themselves. Familiarity with a given subject matter is rarely mentioned as a priority, and costs more rarely still. Instead, here is what the experts consistently emphasize:
- The mediator needs to be smart, though not necessarily brilliant, and must be willing and able to read and comprehend written documents. I once found out that a highly-touted mediator had read the mediation statements just an hour before the mediation started and I have never used him again.
- Almost above everything else, the mediator must be very good with people. This goes far beyond being a charmer; it encompasses the ability to read a wide variety of human beings in order to find out what motivates them, what they fear, and what they truly want. Often, this requires an ability to connect with the party representative in such a way as to build trust, such that later they will be candid when it counts. For example, I have asked numerous mediators how they prevent parties from throwing a tantrum when negotiations bog down and then just walking out, and the answer is always the same. A successful mediator builds trust and respect from the very beginning of the mediation session such that this kind of behavior will either not occur or will cease upon a mediator’s personal request.
- Certain parties probably need the mediator to be a judge because they might need to be told that the mediator has observed their particular situation unfold before a jury, and that the results are predictable. In other situations, this factor is much less important but, in any event, it is usually critical at some point for the mediator to be able to explain convincingly and from experience the risk that a party’s position may not succeed.
- A mediator must work hard, and this means much more than just someone who tirelessly carries demands and offers from room to room. This means keeping an eye out for opportunities for creative solutions, such as getting movement through bracketing or perhaps multiple successive mediator’s proposals. It means watching for conflict even within a particular room, and it certainly means working late. But perhaps most of all, it means being energetic and willing to follow through as early as the very next day after the mediation if there is no resolution. The best mediators keep at this day after day, with new sessions scheduled unless someone just refuses to come.
- Finally, I have noticed that almost all of the great mediators build trust in the process itself, such that all parties feel they have been heard and that all of the realistic choices have been put on the table. Many will start each of the separate-room discussions with a common statement to each room: “I am wondering how we can get those very difficult people in the other room off your back.” Saying this to both rooms is inconsistent, of course, and logically it should never work, but it does seem to have effect. One psychologist explained this to me by saying that the parties are so convinced in their own minds that they are the only reasonable people at the mediation that this statement could only apply to them. Maybe so, but from what I have seen, the premier mediators seem to pull this off by managing the back-and-forth process to the point where all parties feel it has worked for them by revealing the best specific alternatives to deal with risk.
The vast majority of mediators do not possess these qualities, and many who have good credentials (and high billing rates) do not either. But there are a select few who do, and their results usually speak for themselves. No one size fits all, but success usually results when most of these five qualities are present.
For further information, please contact Bill Norman by email at firstname.lastname@example.org, or by phone at 415-765-6236.