Characteristics of a Good Mediator
Don’t Be Restless
A good mediator needs to be patient, as do counsel and the parties. A “standard” mediation can be tedious and time consuming. Indeed, I have a colleague who says nothing happens in mediations until 2:00 in the afternoon. While I don’t mediate in this fashion, I, wearing my advocate’s hat, completely understand what he means. Often mediators get blamed for the slow pace and/or length of a mediation, but, in my experience, counsel and the parties are equally responsible.
Don’t Give Up
A good mediator also needs to be persistent. Now, you certainly do not want to irritate counsel and the parties, but a “never say never” approach is recommended. Early in my career as a mediator, I adjourned a mediation when I believed an impasse, despite using a reliable technique, could not be resolved. The next day I received a call from one of the attorneys who inquired as to why I had adjourned the mediation. After I explained myself, he said, “Well, we had more authority.” I inquired as to why he didn’t tell me that at the mediation, and he had no response. The case was resolved shortly thereafter through the use of “telephone mediation.” Perhaps if I’d been more persistent, the case would have been resolved, and a mediation settlement agreement executed, at the mediation itself.
Be Interested
A good mediator has to be a very good listener. To some parties, the mediation is their “day in court.” To some attorneys, the mediation is an opportunity to at least showcase their advocacy skills. The words that counsel and the parties speak to the mediator are important. These words, at times, are part of a lengthy speech, and it is tempting to let your mind wander. The mediator should not allow this to happen; somewhere in the lengthy discourse is likely to be a pearl or two that will move the mediation closer to a resolution. “Listen, listen, listen” is tantamount to “location, location, location” in the world of retail. To not listen, frankly, is not productive and is discourteous, certainly not a trait anyone wants in a mediator.
Be More Than a Messenger
In my view, which is not shared by everyone in the ADR community, a good mediator also needs to be evaluative, i.e., offer opinions when appropriate, rather than simply conveying positions of the parties. There are times when it is appropriate to simply convey messages of the parties, most notably when the mediation evolves into simply “trading numbers”, i.e., numbers exchanged with little or no explanation. The parties expect, and deserve, thorough preparation by the mediator. Thorough preparation, especially by a mediator experienced in the subject matter, leads to substantive questions and opinions. Communicating them can often help move a party to a position more prone to result in a settlement than otherwise. There is a caveat here – the mediator must maintain neutrality.[5]
If You Build It, They Will Come
A good mediator must build trust among himself on the one hand and the parties/counsel on the other hand. Presumably, counsel already trust the mediator or they wouldn’t have selected her/him. The parties, however, only have the word of their counsel as to the mediator’s ability, trustworthiness, etc. So, how does/should the mediator accomplish this task? At least two commentators, believe one method is through “rapport talk.”[6] “Rapport talk” is conversation, sometimes even unrelated to the mediation itself, that helps to develop and build a relationship. This is contrasted with “report talk”, the purpose of which is to share information.[7] Regardless of how it is done, there is no question that a mediator must find a way to build trust.
This blog post is part of David Schaefer’s peer-reviewed article, “Some Thoughts About Mediation,” published in the Litigation Counsel of America’s Litigation Commentary & Review. For more information or assistance regarding alternative dispute resolution, please reach out to request a consultation, call us at 216-696-1422, or visit David’s bio for his contact information to reach out to him directly.
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[5] As a mediator, maintaining neutrality is often taken for granted by the parties and their counsel. This is not surprising since counsel likely described you as a “neutral”. Staying neutral, however, can be difficult when a party or counsel take an unreasonable position.
[6] Jan Frankel Schau and Nina Meierding, “Negotiating Like A Woman – How Gender Impacts Communication Between the Sexes”
[7] Id.
