What Kind Of Commercial Mediator Are You

by Tom Oswald
September 2002 Tom Oswald
Are you a specialist or generalist commercial mediator? Has anyone ever asked you this question? Sometimes I get interrogated about this when I introduce myself as a Commercial Mediator. The broad range of possibilities that can be ‘commercial mediation’ does warrant elaboration, especially from the perspective of a potential client.

Does Commercial Mediator mean that you work in TV advertising conflict? Or does it mean you work in commercial real estate issues? Do you practice ‘business to consumer’ (B2C) home remodeling conflicts or do you practice ‘business to business’ (B2B) issues such as off-shore oil drilling platform leasing?

The chief question is: How much do you know about my business? People want to know this as prospective clients. Often shoppers of mediation services assume it is better to hire a commercial mediator with extensive background in their particular business area. They are not aware there are virtues to both the mediator steeped in substantive knowledge of their business as well as the mediator with general commercial experience but not in their specific business area.

In many professions, a practitioner is only able to serve their preferred market segment if they are specialized. As a specialist, a mediator will likely come to the table with greater knowledge about the issues the parties face. This familiarity will generally provide the mediator with deeper background understanding to support the party’s quest for a mutually acceptable resolution to their issues. But conversely, not having that substantive knowledge background in their specific business can be a significant advantage as well.

There is a dialogue in our profession concerning a counter-example of the effectiveness of the ‘practice area specialization’ concept that may be unique to mediation. I have experienced how this example functions and know it can be extremely effective.

As a commercial mediator I am frequently exposed to areas of business that I knew very little about before initiating the mediation process. Through the mediation process I have learned a great deal about many businesses. The process features an aspect where each party explains their issues and concerns to all the parties as well as the mediator. This sharing of understanding can be very illuminating for the participants. By way of the mediator developing knowledge about the issues at hand, each of the parties involved also gains a significantly enriched understanding of the case. As the mediator thoroughly validates, paraphrases, and clarifies what each of the parties is expressing, all the parties gain greater understanding. This can return surprisingly rich dividends.

Through this process erroneous assumptions have been broken, detailed understanding of the opposing parties situations have improved, and substantial new facts have been brought to light. Sometimes the knowledge revealed was previously unknown, unheard of, or simply un-thought of. I have experienced the uncovering of virtual revelations during the process of explaining a case which have terrifically accelerated resolution of the conflict

When this happens, not only is the conflict resolved, but often the business relationships are revitalized and strengthened. Sometimes key information is missing from executive decision processes that result in the launching of parties into a conflict situation they are not able to resolve themselves. Based on the varied knowledge they initially possess, polarization of positions can easily occur, leaving the parties with no apparently acceptable solution. While it is true that sometimes parties to commercial conflict do not participate in good faith, more often than not, business professionals simply want the diversion resolved so they can get back to their business.

So, in the debate about whether substantive knowledge is required in a practice area or not, there are significant pros and cons to both sides. A mediator with substantive knowledge of a business area can bring great resources to a mediation. On the other hand, the mediator who has less background in a particular business area may, through that explanation process, help produce a rapid resolution and relationship enhancement.

What’s the bottom line in this debate? All that can be safely said is that prospective mediation consumers should not limit themselves to only considering mediators with extensive knowledge of their particular business area.

Biography


Tom Oswald is a civil/commercial mediator and conflict consultant from Boston. He practices both domestically and internationally and has been employed as a civil case court mediator.  Professional publishing includes editing the Commercial Section for Mediate.com, several pieces in various Association for Conflict Resolution (ACR) publications, and others. He has held national professional leadership positions in his field including 2 years service as Co-Chair of the ACR Commercial Section and previously as Vice President of the Mediation Association of Northern Ohio.



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Website: www.mediationtransformation.com

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