Great Mediator

“A diplomat…is a person who can tell you to go to hell in such a way that you actually look forward
to the trip.”

Caskie Stinnett

THE ART OF FINDING
A GREAT MEDIATOR
By Linda Fritz, Esq.

Every great mediator has (at the very least) the following six qualities:

1) Ability to empathize: Being able to walk in another’s shoes (regardless of whether one would buy them) is a priceless trait that engenders trust, builds rapport, fosters consensus and “connects” the parties.

A well known text on alternative dispute resolution stated it succinctly: “It’s not enough to study them like beetles under a microscope; you need to know what it feels like to be a beetle.”  [Roger Fisher and William Ury, “Getting to Yes” 23 (Penguin Books 1991)]. Without empathy, there is no possibility of an honest willingness to understand.

2) Willingness to understand: This quality is born out of and demonstrated by listening – in asking open-ended questions rather than “having” the solution. Asking parties who, how, what, why, where, when, etc., and listening to their answers is powerful stuff. This concept and these techniques allow for parties’ differences but focuses on their similarities. There is an honest acknowledgement and appreciation for all involved – an evolution from discussion of the issues to a group vision, and finally, the awaited rapprochement. Ask, “How did that affect you at the time?” Ask, “What was that like for you?” Ask, “What happened next?” Ask….don’t tell.

3) Ability to identify the source of conflict: A great mediator who has built sufficient trust and rapport between the parties will frequently remind them that the past is over and the future is now. It has been said that the point of power is the present moment, and this is equally true for the mediation process. Fundamental to the success of a mediation is the mediator’s prowess in separating the relevant from irrelevant, the meaningful from the unmeaning. Parties tend to wend their way through their individual mental paradigms and tangents. The great mediator diplomatically but firmly leads them “home” to embrace the gravamen of the conflict.

4) Ability to inspire personal responsibility: Some time ago I worked under a newly retired marine colonel who had seen a lot of active military combat. (In private I referred to him as “commando”.) I remember asking him about his experiences in combat and, in general, in the military, and asked him what he thought the most important ingredient was for a person’s success. He was emphatic and stated that one’s ability to take personal responsibility for one’s acts is the lynchpin for all success. Look around you – many people in today’s society seek to avoid personal responsibility. This dynamic often manifests itself by people trying to “lay blame” for misfortune at the feet of everyone and everything else, rather than trying to ascertain what part they played in the event. A great mediator coaxes, prods and cajoles the players, as necessary, into taking personal responsibility for their respective roles in the conflict. She is also a ready source of acknowledgement and praise for those who engage in this difficult undertaking. No mediation is ever successful – no conflict is ever resolved – unless the players accept their roles in the underlying disagreement.

5) Ability to complete resolution: A great mediator is a “scrapper” who adheres to the premise that impasse is nothing but illusion. Rather than viewing the illusion of impasse as a reality, she views it as the watershed that will produce movement from a supposed stalemate to complete resolution, with the assistance of her professional techniques. Attorneys who have appeared before mediators, myself included, who “gave up” when there appeared to be a serious obstruction agree that this is a very disappointing experience, not only for the lawyers, but also especially for their clients, the parties. There is no sense of closure, no feeling of accomplishment, just a sense of loss. A great mediator pierces the illusion of impasse by reminding herself that it does not, in fact, exist. She uses the techniques she has learned to move the parties from the point, expending significant effort on their behalf while reaffirming their roles in, and responsibility for, the process. A great mediator might say, “I’m feeling a bit frustrated right now. This is your mediation, folks, what do you suggest we do?” And then she keeps silent until someone talks, whether that takes 30 seconds or 5 minutes.

6) Substantive legal experience: Although not every great mediator is an attorney, most lawyers I know prefer a mediator who has demonstrated legal experience in operative areas. The first reason for this is the parties’ comfort with and confidence in the mediator. The second reason is the lawyers’ comfort with and confidence in the mediator. The third reason is that a great mediator-lawyer has an excellent grasp of the litigation process, including its deadlines, time constraints costs of suit and ultimate risks associated with a trial or arbitration. She will emphasize these factors when engaging in “reality checks” with the parties and counsel.

How do you find a great mediator for your dispute?

Ask your friends and colleagues about their experiences with certain mediators, that is, whom they like and why. Word of mouth, especially in closely-knit legal communities is always a competent reference if you trust the source of the information.

Contact people who are under consideration for mediating. Ask for a copy of their resume. Talk with them about about the mediations they have performed -how many, what types of cases, how many years have they been mediating, are they members of panels, like theJAMS national roster of mediators and arbitrators. Ask them for references as to previous mediations. Contact those references and ask about their experience with a particular mediator. Be specific and thorough.

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