What Does A Mediator Do?


by Edward P. Ahrens

February 2002

Edward P. Ahrens Okay, we know you can't make decisions. We know you can't issue orders. ('I'm not a judge or an arbitrator, blah, blah, blah.') We know you can't take sides, must always remain neutral. And we know you can't give us legal advice. And then you tell us mediation is a consensual process. Bummer. Now the other side can walk at will!

"So, what in the hell DO you do?"

Oh, you've never said this in so many words, but we've read your minds and understand your frustration. In many cases, you'd like the mediator to play judge and settle the matter once and for all, right?

The problem is the law and regulations covering the conduct of mediators and the process of mediation do not allow us to do these things, and it's well they do not.

Mediation is your process, not the mediator's. Decisions are yours and your client's to make, and mediation is the only forum in which you have complete control over decision making by or in behalf of your client. And, as much as you'd like the mediator to side with you, you don't really want this to happen, 'cause in a given case how would you know which side he or she actually is on, hmm?

And, finally, the rendering of legal advice is the job of the attorney representing the client. Ask for our opinion and we'll give it to you the best we can. But don't expect unsolicited advice. In the first place, you might resent it, professional pride being what it is, and, secondly, how would opposing counsel feel about our giving you favorable advice or reminding you of some legal principle you may have overlooked? He'll think, hmm, smells of bias.

So, what DO we do?

Well, first and foremost, we give you a hard time - or try to. We ask you questions you probably don't want us to ask or have forgotten to ask yourself or your client, or have forgotten the answers to. We call them "reality checks."

We'll ask you and your client what it is you're really looking for in a settlement. We do this as much for your benefit, to be sure you are clear about your expectations, as for ours in helping you reach that goal.

We'll bore you with cliches that, while you've heard them ad nauseam, are probably quite original to your clients and frequently do serve to refine the objectives in steering parties toward a resolution.

We remind you to look at the big picture and not focus on inconsequential legal or factual issues. They merely distract you from the key issues and your settlement goal.

We tell you and your client (just in case it hasn't been discussed in recent weeks or months) trials are expensive, stressful, take time and that their outcomes are terribly uncertain.

While subtle and often not appreciated, by separating the parties in breakout or caucus sessions, we are able to control heated emotions that can frustrate a settlement and to keep folks focused on their interests rather than their positions.

And, finally, we try to make the point that an amicable settlement, while not always satisfactory to either side, is the best of all worlds and a win-win for both sides.

Oh, also, occasionally, we'll share the latest good joke with you.even if it's not always worth the cost of admission.



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Biography




Ed Ahrens has been a member of the Florida Bar for over 43 years. He is a certified state and federal court mediator in Tampa, Florida. He is also a freelance writer and former president of National Writers Association, South Florida Chapter. He is the author of the popular book, The Perils of Imprudent Writing-How to Watch What You Write and Stay Out of Court, now in its second edition. See VanBurenBooks.com and FloridaMediationGroup.com for additional info on Ed and his writings.

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Website: www.FloridaMediationGroup.com

Additional articles by Edward P. Ahrens



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 Jasmine ,   St. Thomas VI    02/27/10 
 Mediation can stink, Part II (1 correction made .) 
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I'd like to make one revision and annotation to my earlier submission: Overtime should read "overtime". In mediation/arbitration hearings, there is nothing such as "overtime", as proven here by JANE'S COMMENTS. Continuance is always a right of, and available to, either party feeling the need for it. Even if your atty. or other rep. tries to tell you that it's not necessary, STILL DEMAND IT if your gut feeling says to do so.
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 Jasmine ,   St. Thomas VI    02/27/10 
 Mediation can stink. 
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In these 2 instances, mediation stunk for my friend and I. In my case, the mediator showed bias, lack of neutrality, and poor interpretation of the law. He made comments which revealed exparte communications were had with him and my opponents. Also, when I held the session in overtime, he showed anger. My atty. failed me too, because when I showed reluctance and offered not to sign an agreement, he remained silent..offered me no advice. During times the mediator was not in room with us, rather than seizing the moment for stratigizing, etc., my atty. talked of "the beautiful weather" instead. As for my friend, her (arbitration) case was riddled with imnormailties. The hearing went unrecorded and it turned out that her settlement was forged by her reps. (which did not want her to win in the first place-- conflicts of interest appearing). Through investigation, it was revealed that the arbitrator did not rule against her. In both cases, it appears that conflict of interest played a disturbing and unfortunate role. Because mediation hearings are never recorded, evidence is hard to produce, and so the aggrieved can be easily toyed with. Since the results of arbitration is final & binding, unlike the results of mediation, I believe it is MEDIATION hearings that should be recorded. Lastly, although "less costly and less time consumming" is the promise, as long as mediation is not transparent and not ran clean, ethically and professionally, it will never make up for the joys in victorious litigation.
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 kaarina ,   Windhoek Na    06/22/09 
 I like what mediators do. 
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The characteristics of a mediator makes me fall in love with them and this makes me want to become a mediator one day.I also want to encourage mediator out there not to be bias, because by that way they will make people not to like them and lose trust in any other mediators out there, Im a students at the University of Namibia doing Alternative Dispute Resolution, and i love the course,
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 kaarina ,   -22.000000 na    06/22/09 
 I like what medistor do. 
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The characteristics of a mediator makes me fall in love with them.I also want to encourage mediator out there not to be bias, because by that way they will make people not to like them and lose trust in any other mediators out there, Im a students at the University of Namibia doing Alternative Dispute Resolution, and i love the course,
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 Jane ,    CT    04/02/08 
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I spent an enormous amount of money on mediation that went into years. My mediator could only provide us with 2 at the most visits per month and charged enormous fees. He submitted drafts of an agreement with many incomplete areas and billed us for additions. 18 visits later I am broke and still do not have a divorce. He was a crook and I want to know how I can report him. I am now finding out many others have experienced this as well.
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