So. . . you have decided to mediate your dispute. Now, you must select a “good” mediator. How do you find one and more importantly, how do you define a “good” mediator?
Most people find a “good” mediator either through personal experience (i.e., previous mediations with a particular mediator) or through word of mouth or referral.
The more important question is what do you (and everyone else) mean by “good”?
Recently, the American Bar Association’s (ABA) Section of Dispute Resolution issued its Final Report of its Task Force on Improving the Quality of Mediation. This Task Force was formed in January 2006 “to investigate factors that define high quality mediation practice.” (Id. at 2). It investigated using a series of ten (10) focus group discussions in nine cities across the United States and Canada. The participants in these focus groups included outside counsel, in-house counsel, and non-attorneys in organizations “whose responsibilities included working for parties in mediations.” (Id. at 3). The Task Force also conducted focus sessions with experienced civil mediators. In addition, the Task Force collected more than 100 responses to questionnaires sent to mediation users and to mediators. It also conducted thirteen (13) telephone interviews with mediation participants.
The Task Force found that each different group of participants identified the same four (4) issues as important to mediation quality:
? “Preparation for mediation by the mediator, parties and counsel”
? “Case-by-case customization of the mediation process”
? “ “Analytical” assistance from the mediator”
? “ “Persistence” by the mediator.” (Id. at 3).
With respect to preparation, many of the participants, “. . . identified preparation by the mediator, the parties, and the parties’ counsel as important for success in the mediation’s outcome. Many focus group participants mentioned liking pre-mediation discussions with the mediator, in part because the discussions prompt them to prepare themselves and their clients for mediation.” (Id. at 6). The survey respondents felt it was very important, if not essential, that the mediator know the file and read the documents: mediator preparation was essential. (Id. at 7).
With respect to case-by-case customization of the mediation process, the participants noted that customization generally occurs during or as part of the preparation phase. (Id. at 12). “Customization is the element of preparation that involves planning a mediation process tailored to the needs of the parties and the dispute. . . . [T]he timing of the mediation, exchange of information before the session and whether to have opening statements, are all elements that can be customized to each dispute.” (Id.) Thus, the participants urged that mediators should not use a “cookie cutter” approach but rather be flexible in how they conduct the mediation process. (Id.)
The third consistent element involved “analytical” assistance from the mediator. (Id. at 14). The responses to the survey showed that the mediation participants believed the following from the mediator would be helpful: (1) ask pointed questions that raised issues; (2) give analysis of the case, including strengths and weaknesses; (3) make predictions about likely court results; (4) suggest possible ways to resolve issues; (5) recommend a specific settlement; and (6) apply some pressure to accept a specific solution. (Id. at 14).
The last common factor is “persistence.” According to the participants, “persistence” included, “. . . trying to keep people at the table, trying to get the case settled by exerting some “pressure” and trying to get people back to the table after a mediation session fails to settle the case.” (Id. at 17). Ninety-three (93) percent of the mediation users believed that if a matter did not settle at mediation, but there was potential for settlement, then the mediator should follow-up with each side. Clearly, the mediation users wanted the mediator “to be actively engaged in helping them to settle their dispute.” (Id.). They do not want a “potted plant” mediator. They do not want mediators who end the session when the negotiations have gotten difficult – either emotionally or substantively. Rather, they want a mediator - who at such points – will be creative and optimistic that the “difficulties” (if not impasse) can be overcome and a resolution reached. (Id.).
So. . .in your quest to find a “good” mediator, consider these four (4) questions: (1) Does the mediator prepare for the mediation? (2) Does the mediator approach each mediation uniquely? (3) Does the mediator provide any analytical assistance? and (4) Is the mediator persistent?
. . . Just something (actually quite a lot) to think about!