The Unimportance Of Subject Matter Expertise
I have just read an excellent post from F. Peter Phillip's Business Conflict Blog.
I am going to quote from it at length because there is no other way to do it justice.
Peter has been reporting from the International Business Association Conference in Madrid and this post concerns a panel of corporate users who were asked whether subject-matter competence was an important factor in selection of a mediator. This question is one of those perennial topics that will always be debated. It is akin to the facilitative/evaluative dichotomy. Maybe Peter's post will settle it once and for all.
So who better to ask than corporate users? If subject matter competence is important, then surely the corporate users will tell us.
Peter reports that a survey was taken and that “The respondents came from 20 different countries....The survey concluded that, while utter ignorance seldom added value, [who can argue with that?] users preferred a mediator who could quickly grasp the facts of a matter and proceed to solicit authoritative and informed solutions."
A legal director for an engineering company “…does not seek out mediators with engineering or IT backgrounds. Rather, he looks for a bundle of mediation-related skill sets and past experience in complex multiparty disputes....But by far the most salient attribute for a successful mediation, he said, was the trust that the parties placed in the mediator."
[One lawyer was] “senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe. His ideal mediator combines logic and intuition; a concern for detail; and the knack of an empathic listener. He noted that commercial disputes even financial ones are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do. The question of subject-matter expertise was of little importance to [him], compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness. A lack of industry expertise has never caused a failure of the mediation process."
“On the other hand, [another lawyer] deals largely with cargo airlines and shipowners …. The culture of maritime practice, in his opinion, is an essential attribute for the understanding and resolution of these disputes, and he has used industry experts for years. It is important to him that he employ good negotiators with high mediation skills, but who know the practices and the expectations of the maritime industry intimately."
The head of technology for a UK company strongly prefers “generalist mediators, who can humanize engineering problems and conduct sessions in a manner to solicit human solutions to them…."
“The final speaker [who was] General Counsel France for General Electric Company [which] puts mediation clauses into as many contracts as it can” said that “what I am looking for is a decent human being.” What a concept!
So there we have it: the ideal mediator of business disputes. Someone who is a decent human being, has a bundle of mediation-related skill sets and who can even humanize engineering problems. An empathetic listener, whom the parties trust, who can call upon logic and intuition as well as a concern for detail. An expert in a process that is aimed at cost effectiveness. And, at least in some cases, a person who understands the expectations and practices of the industry. I guess that about sums it up. Wouldn’t you agree?
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
Additional articles by Michael P. Carbone