One Attorney's Perspective on Being a New Mediator
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April 2011 |
Mediation is a powerful vehicle to resolve conflicts and change perspectives on dispute resolution. It is an evolving field with some core tenets. “Self-determination is the fundamental principle of mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement.” A mediator should be a neutral and impartial third party. The role of mediators and what components are necessary to train a good, effective mediator have been debated, but it is unquestionable that a good mediator requires a solid foundation, comprehensive training and guidance. The following is a brief discussion of the process that I went through to become a mediator and the challenges I faced as a new mediator.
The Basics
There is a lot of literature available detailing the steps to become a mediator, so I will only provide a very brief overview of the process. The first step to becoming a mediator is usually taking a basic 40-hour basic training. This training usually includes role plays and interactive sessions, as well as essential information on conflict resolution. The next step is to observe experienced mediators. Observation is a key element to improving mediation skills. Observing other newly trained mediators, as well as more seasoned mediators can be very insightful.
Often part of mediation training involves co-mediating disputes with another mediator. Co-mediators work together to help parties in a dispute reach an agreement. There should be a certain level of comfort between co-mediators and their styles should complement each other. Co-mediation is a wonderful way to gain experience and qualify to mediate on your own with various mediation programs (for example, many court programs require you to complete a number of mediation sessions or cases before mediating on your own).
There are different approaches to mediation; mediators are usually trained on a particular style of mediation. The three most widely recognized forms or styles of mediation are: 1) the facilitative approach, where the mediator primarily helps the parties to communicate with each other and facilitates discussion; 2) the evaluative approach, which generally assumes that the parties in the dispute need basic guidance for settlement; and 3) the transformative approach, which focuses more on interpersonal responsiveness and constructive interaction (which can be especially beneficial in situations in which the parties have an ongoing relationship). New mediators should become familiar with the different forms and understand the strengths and weaknesses of each.
Once the training and certification requirements for a reputable mediation program have been completed, new mediators should also take advanced training and workshops in specialized areas of interest (e.g., divorce mediation, employment mediation etc.). Regardless of specialization, there are certain standards to which mediators should adhere. There are model standards of conduct for mediators, which “are intended to perform three major functions: to serve as a guide for the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.” New mediators should also become familiar with these standards and incorporate them in their practice.
All of the aforementioned components were part of my “basic” mediation training. I completed my mediation training at Fordham Law School when I was still a law student. Observation sessions and co-mediating helped me become better at delivering opening statements that are empowering and build the parties’ confidence in the process. My training also enabled me to effectively frame issues identified during mediation sessions. The way an issue is presented or “framed” can make it more manageable and susceptible to resolution.
By watching other mediators at work, I was able to discover which methods proved most effective and, equally as important, what interpersonal skills made clients trust and have greater faith in the competence of their mediator. To participate in Safe Horizon Mediation Center’s program, I went through a process where I performed a mediation for a simulated dispute. I was videotaped and evaluated by Safe Horizon staff and approved to mediate for the program. Being observed and critiqued by experienced mediators also helped prepare me for mediating complex issues. However, like all new mediators, I did face certain challenges.
The Challenges
New mediators face numerous challenges. Facing those challenges and overcoming obstacles is part of becoming an effective mediator. As a new mediator, some of the challenges I faced included the following: 1) nervousness and lack of confidence; 2) difficulty being consistent, self-reflective and recognizing boundaries; and 3) obstacles to finding the right programs to practice and develop my skills. Below is a discussion of these challenges and how I overcame them.
Almost all new mediators are nervous. Developing confidence in your mediation skills takes time and practice. A major factor in overcoming my nervousness and building confidence was understanding that every mediation was not going to be formulaic and result in a nice, neat agreement. As one author notes, “[a] mediator who understands his or her role can bring value to even those disputes that are not ripe for settlement by assisting the parties in designing a process that helps to get the case ready for future settlement in the most efficient and speedy way possible.” The more I mediate, the more confident I am in my abilities to help parties better understand each other and work towards mutually satisfying agreements.
What does it mean to be “consistent, self-reflective and recognize boundaries”? For me, being “consistent, self-reflective and recognizing boundaries,” means truly understanding that as a mediator I need to be neutral and impartial, but that I come to the table with my own personal biases and perceptions that need to be set aside. “The mediator can never forget that she, like each party, brings her own perspectives to the process.” As a mediator who is also an attorney, I think this can be particularly challenging. I have to deal with power imbalances between parties without advocating for one side. For example, when mediating a dispute between a large car dealership and a struggling parent who purchased a car for work, my first instinct may be to advocate for the rights of the purchaser. In another matter, I may want to re-write a payment plan that a young college student entered into with a credit card company, but that is not my role as a mediator. Recognizing our own tendencies and biases as mediators is the first step towards neutralizing them. As a mediator, I do have to be aware of these power imbalances and I have a responsibility to make sure that the mediation process is fair to the parties so that they can reach a “voluntary, uncoerced agreement.”
Another challenge for me as a new mediator was finding consistent relationships and environments to develop my mediation skills. This was less of an issue when I took part in a law school mediation clinic that was well-run and very organized. As lawyers we are usually more familiar with very structured environments and requirements as we work. Mediation can be a more fluid process. While I enjoy having the freedom to explore conflicts, I also appreciate structured guidelines and protocols. As a result, I sought out supervised programs that would help me develop my mediation skills in a consistent and supportive environment. There are various types of mediation programs and it is important that new mediators spend time finding the right program for their needs and goals.
I have mainly practiced facilitative mediation. As a new mediator, it is important to identify the approach you prefer and the type of environment in which you are most comfortable mediating. For example, I have enjoyed mediating community disputes for Safe Horizon Mediation Center and Small Claims Court in Queens, New York. These are two completely different settings. While many of the skills you use are the same, the experience is very different. Often the cases in Small Claims Court do not involve ongoing relationships. There may be a one time transaction or single interaction that is the focus of the mediation. This is very different from mediating in a community-based program where the parties may be neighbors or relatives.
As a mediator who is a full-time practicing attorney, the other big challenge that I faced is finding the time to mediate and getting to mediate in the contexts and settings that I wanted. I have found that there are a limited number of programs that offer well-developed opportunities to mediate in the evenings outside of Small Claims Court. However, networking with other mediators and being a part of alternative dispute resolution groups, have provided numerous opportunities for me to get involved and learn about other programs.
The Evolution
As the practice of mediation (and alternative dispute resolution) continues to expand and evolve, it is important to think about the role you, as a new mediator, want to play. There are many different ways to get involved and establish yourself as a mediation professional if that is your goal. It is important to maintain connections with or join a mediation organization. Being a member of a mediation organization helps you keep up to date on developments and changes in the field. There are several talks, roundtable events and training sessions that help mediators develop their skills and mediation practices. These platforms are also wonderful mechanisms to explore your interests.
Jay E. Grenig, Appendix H. Model Standards of Conduct for Mediators, 2 Alt. Disp. Resol. Appendix H (3d ed.) (2010); see also Unif. Mediation Act (2003).
Susan Nauss Exon, The Effects that Mediators Styles Impose on Neutrality and Impartiality Requirements of Mediation, 42 U.S.F. L. Rev. 577, 578 (Winter 2008).
The evaluative approach is probably the most controversial method. Using an evaluative approach, the mediator may appraise the cause of action, and even give an assessment of the probability of the outcome and possible damage awards.
See Susan Nauss Exon, supra note 2 at 591-94 (discussing different mediation styles and maintaining neutrality).
Robin Gise, et al, Mediation Starts from the First Phone Call--Practice Pointers and Helpful Hints for Lawyers Going to Mediation, 11 Cardozo J. Conflict Resol. 463, 464 (Spring 2010).
Biography
Sheea T. Sybblis is currently a career law clerk for a federal district judge in the District of New Jersey.
Ms. Sybblis graduated with a B.S. in Biochemistry from the State University of New York at Stony Brook then obtained her M.B.A from Baruch College. She obtained her J.D. from Fordham University School of Law in 2005, where she was symposium editor of the Fordham Intellectual Property, Media, and Entertainment Journal, on the Board of Student Advisors and participated in the Fordham Mediation Clinic. She also won the CT Corporation Legal Essay Writing Competition on law and technology.
After law school, Ms. Sybblis worked as a corporate associate at Stroock & Stroock & Lavan LLP before clerking for U.S. District Judge Susan D. Wigenton in the District of New Jersey from 2006-2008.
Following her clerkship, Ms. Sybblis was an associate at Patton Boggs LLP. Her private practice was concentrated on complex toxic torts, product liability, environmental and commercial litigation. Ms. Sybblis has represented major corporations in the finance, agriculture and biotechnology industries in commercial litigations involving toxic torts, product liability and fraud. She has vital experience responding to complex toxic tort allegations and has participated in the defense of public and private entities in large-scale litigations such as the In re World Trade Center Litigation. Ms. Sybblis is particularly proficient at assessing scientific issues raised in litigations. She has performed intense regulatory compliance assessments, including the evaluation of potential risks and environmental liabilities. Ms Sybblis has also evaluated science data and medical information to provide integrated responses to claims in litigations.
Ms. Sybblis has provided pro bono representation to victims of domestic violence. She also worked on drafting an amicus brief to the U.S. Supreme Court on behalf of another pro bono client, the National Association for Fetal Alcohol Syndrome.
Ms. Sybblis is an approved mediator for Safe Horizon and has mediated community-based disputes. She also mediates in Small Claims Court.
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| Ruthie Keyes, Fort Worth TX | ruthiekeyes@me.com 08/24/11 | ||||||||||||||||||||
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