When I last wrote about what matters most to the parties in mediation, we identified trust in the mediator as the single most important factor in a client’s overall assessment of the fairness of a mediation. If a client senses that a mediator is “untrustworthy” a successful resolution is unlikely. Interestingly, the converse is not true. If you recall from my last article, one of the most surprising findings by Dr. Jean Poitras, a Canadian academic and mediation researcher, is that parties do not judge a mediation solely by its result; that is, resolution “in their favor” or even no resolution at all, is not the lens through which actual mediation participants gauge their satisfaction with the experience. Instead, it is participants’ impressions of the fairness or unfairness of the process that remain with them long after the mediation’s result has faded. Was it a fair process generally, and was it fair to them specifically? Or did elements of their experience of the process leave them with a feeling of distrust or unease?
Let us remember that most mediation participants come into the experience “cold” – most usually, they are not veterans of prior mediations and their only pre-mediation education is what their lawyers have told them to expect, based on the lawyer’s experiences. But Unlike a party in mediation, a lawyer as a professional is interested primarily, if not exclusively, in outcome – A settlement that meets the lawyer’s parameters, whatever they may be. As the old expression goes, “a pick pocket only sees pockets,” so too a lawyer who only is interested in whether the dispute has settled near her terms may not see much more beyond outcome. For a participant, however, especially one new to dispute resolution, the experience of mediation is more nuanced, and anxiety-fraught, than it is for a lawyer. Whether the participant trusts or distrusts the process may be entirely dependent on how she or he experiences the mediator.
The success of mediation as a process demands its acceptance by participants as a fair and efficient way of dispute resolution. That can’t happen without the parties’ trust in the mediator, which is not a given that comes with a mediator’s appointment. It’s up to the mediator to win the trust of the participants. And one of the ways the mediator accomplishes that goal is through demonstrating mastery of the process. The first step in the mediator’s trust-building is welcoming the participants to the process and explaining to them the mediator’s experience with the mediation process. As many times as the mediator has given his introduction, and as many times as the lawyers have heard it, it’s usually the first time that the mediator has addressed the lay participants, and first impressions matter. thoughtful, thorough, and most of all unrushed -- the parties, and not the lawyers, are the mediator’s audience and it is critical for the mediator to keep that in mind.
The parties want to know that the mediator has helped other parties reach resolution and is committed to helping them do the same. If the mediator has experience in similar cases, letting the parties know that reassures them they have come to the right person for help. If the mediator has spoken with them or their lawyers before the mediation, mentioning that again at the mediation shows the participants the mediator’s commitment, professionalism and familiarity with the case.
Of the more than 100 respondents interviewed in Dr. Poitras’ study, more than 35% reported that their mediator had inspired trust by his or her professionalism, familiarity with the case, reference to prior mediation and self-assurance. All of these qualities, referred to collectively as the “mediator’s mastery” of the process, were a commonly reported factor in participants’ reaching a conclusion that they held a high level of trust in the mediator.
The sometimes rush to get into caucus sessions may lead a mediator to dispense with or give short-shrift to the opening joint session. Short-cutting or hijacking the opening session in favor of caucuses has its risks, however. A party who doesn’t see the mediator dealing with the other side, misses out on experiencing the mediator’s even-handedness and control of the process. Many mediators fear joint sessions because parties’ emotion and hard feelings may be on display. IMHO, that’s no reason to dispense with a joint session. Those emotion and hard feelings will follow you into the caucus room, and if unexpressed during the joint session, 1) may boil over in caucus, and more importantly, 2) deprive the mediator of a crucial opportunity to display mastery over the process by hearing and responding to the emotion in a fair, even-handed way in both parties’ presence.
Mediator trust does not come by mastery of the process alone. Dr. Poitras’ research has identified Other factors as well that contribute to participants’ sense of mediator trustworthiness. Following his team’s review of questionnaires of parties who had completed a total of 105 mediations with 36 trained, full-time mediators, he identified from the parties’ perspective 5 key subject areas of interaction with the mediator that parties emphasized in answering why they trusted (or didn’t trust) their mediator:
1. degree of mastery over the process,
2. explanation of the process,
3. warmth and consideration,
4. chemistry with the parties, and
5. lack of bias toward any party.
Each of these areas of interaction provides the mediator with an opportunity to build or destroy trust. For the most part, parties (non-institutional, non-repeat player parties, that is) come to mediation wanting to trust the mediator. They are hoping that he or she will help settle their dispute in a way that is meaningful to them. By paying a fee, they are literally invested in the process but unsure what it involves. It’s all up to the mediator – it can’t be, you pays your money and you takes yer’ chance. In truth, that’s too much like going to trial before the next judge or jury up. In mediation, the parties and lawyers pick you; you don’t pick them. Being a mediator is a huge responsibility that begins with understanding what the parties want from you – more than a resolution, it’s fairness and an opportunity to be heard.
For those of you who want to read more of Dr. Poitras’ study, it is available at https://doi.org/10.1111/j.1571-9979.2009.00228.x. I intend to follow this article with additional ones that speak further to each of the subject areas that his paper identifies – degree of mastery over the process, explanation of the process, warmth and consideration, chemistry with the parties, and lack of bias toward any party—and what it is a trusted mediator can do to improve the mediation experience for the participants and with it improve the likelihood of a successful result.