A mediator whose native language is Spanish and from another country faces unique opportunities, obstacles and challenges in the pursuit of creating a successful mediation practice. This paper is designed to help such mediators build satisfying conflict resolution careers. In addition, this paper attempts to aid peacemakers in achieving their goal to make a living from a mediation practice. While these mediators might have experience, skills, and commitment, they need to market themselves more effectively in order to become financially successful. Many papers or articles address the concerns of English-speaking mediators. Hopefully, this undertaking will provide much needed information for Spanish-speaking mediators.
Capable people can enjoy economic success while also providing badly needed mediation services to those who are in conflict. This paper addresses the reality of professional practice in the mediation field, discusses strategies for developing a practice, and encourages the use of creative resources to accomplish the result sought. At the end of the day, if mediation work is not financially feasible, many who could serve in significant ways will not be able to establish a practice, despite their talent and commitment. This study can help stimulate enthusiastic mediators with new ideas, a structured action plan, and a path that will provide both mediator and client their desired results.
This study is based upon the following assumptions: First, that the mediator who wants to set up his full time mediation practice in California is already a lawyer from a civil law country. Secondly, that a mediator can be a peacemaker both by nature and through training and practice. Next, that the mediator has conviction in his potential to become an excellent professional, and “to deliver high-quality, competent, and resourceful services.” (1) At its core, this paper is about the aspiration to achieve that potential. Finally, that the mediator wants to cross the barrier from the apprentice stage to a level of an accomplished and financially successful practitioner.
II. Who is the Mediator?
Self-evaluation and awareness are crucial to determining the identity of the mediator. The mediator must be in touch with the strengths and personality traits that mediators need in order to succeed. In addition, the mediator needs to take into consideration the mediator’s own weaknesses so as to avoid them becoming an obstacle. Finally, some recommended academic credentials are also included in this part in order to hone the mediator’s strengths and temper his weaknesses. A. Self-Evaluation of the Mediator
A mediator needs to conduct a thorough self-evaluation to determine the potential for success. This may be done by considering four core characteristics of a successful mediator: knowledge, skills, commitment, and credibility. (2) The mediator might also want to consider reasons for wanting to become an ADR professional. It may “resonate” (3) with the mediator’s inner belief system, especially with regards to how people should relate to and deal with conflict.
Assuming that the mediator has some prior experience, the mediator should be able to understand the basic dynamics of conflict resolution. These include the stages of the mediation process, their objectives, activities, and the result to be accomplished in each stage. “It is very helpful to engage in a continual process of self-reflection while taking strategic action in building a career. Furthermore, the mediator needs to be a continual learner by being willing to see perspectives, strategies and experiences other than other.” (4) The mediator should also know the dynamics of interpersonal communication and “strategies in managing it” (5) in order to become a full -time mediator because one of the mediator’s roles is to be the bridge upon which the parties can effectively communicate when their communication is stuck.
Mediation is defined as a facilitated negotiation process in which a trained third person helps the parties to negotiate. Therefore, a mediator must be fully aware of the process of negotiation, including bargaining systems and techniques.
Additionally, the mediator needs to find two or three local colleagues with whom the mediator can develop mentoring relationships. These supervisors often become mentors that can teach the mediator by example. “The mediator should find and use mentors as a source of emotional support that can build the beginning professional’s confidence, to decide what courses to take, which conferences to attend, and how to establish a practice.” (6) For example, the Southern California Mediation Association has a mentoring program that is free to any member who wishes to participate. (7)
The mediator’s strengths include fluency with the Spanish language, the above-mentioned personality skills, prior experience a different country, skills and commitment to the mediation field, and the courage required to set up a new mediation practice in a foreign country. The Spanish language is vital in California, where the Spanish speaking population is the largest one. The personality skills are necessary to develop an effective professional career. The more experience the mediator has, the less difficult the mediator’s transition to professional practice will be. The mediator needs courage to cope with new challenges and difficulties that come up in the new mediator’s way. That courage is a great asset with which to face the new obstacles that will probably arise.
C. Personality Traits of Mediators
There are many personality traits essential to becoming a successful mediator. Some personality qualities a mediator should have include good listening, effective talking, patience, curiosity, open-mindedness, compassion, trustworthiness, flexibility, imagination, and optimism about the future.
Good listening skills are extremely important to becoming an effective communicator. If the mediator possesses good listening skills and is able to learn from others, that experience can bring the mediator joy and satisfaction. The mediator must “be able to hear what he is saying and see how it is affecting the participants”(8). It is important for the mediator to know whether the mediator learns best “by talking, hearing, seeing, touching, or experiencing,” (9) Then the mediator is better prepared to understand the parties perceptions, perspectives, needs, fears and thoughts.
Another personality trait beneficial for a mediator to possess is patience. Mohandas Gandhi said: “The one who loses the patience loses the battle.” If the mediator possesses patience, the mediator adjusts more easily to the reality of the unexpected situations that must be handled.
Curiosity is important for a mediator to have because curiosity can help one learn from each person encountered. Each experience, each problem, and each new situation in life can be a learning experience. Curiosity helps a mediator deal effectively with cross-cultural issues because he is able to learn from differences and grow from them. Therefore, the mediator is capable of knowing how to take something valuable from each person or situation along the mediator’s path. One of the hallmarks of the mediation process is the open-mindedness of the mediator. While appearing to be open-minded is essential, in fact, keeping an open-mind is fundamental. Being open-minded does not mean liking every one or becoming a relativist. Every person has his or her own set of values, beliefs, and thoughts. You often cannot change another’s viewpoints. As a mediator, one of the most important challenges is to put oneself in the parties’ shoes. There is a proverb that states: You cannot judge the other viewpoint before you have walked one mile in his shoes. In other words, by this way, the mediator effectively helps parties to understand the other’s viewpoint because it is a critical mind-set in order to settle the case.
One of the mediator’s key roles is to be compassionate with the parties. This means the ability to build rapport with the parties and to comprehend the verbal and non-verbal language that parties in conflict share with each other. To put it in another way, the mediator must understand the signals the parties are sending to each other. As a result of this knowledge, the mediator is better able to empathize with the parties and, therefore, reinforce the crucial trust-building process. Another key goal for the mediator is to acquire trust from the parties. The mediator must demonstrate to the parties that the mediator cares about their needs and concerns. In addition, the mediator must show a willingness to cooperate with the parties with the intention of settling the case in a satisfactory way to all of them. Indeed, the mediator needs to display trustworthiness to become privy to confidential information at all. This is because the parties often will not tell the mediator their personal issues unless the mediator has previously gained their trust. Parties facing a conflict often have in mind only one way to resolve a conflict. Parties are sometimes unable to see that there are many other possibilities. The mediator’s flexibility can help the parties to develop other alternatives. Many of the issues discussed in mediation sessions are linked among the other issues. For example, issues such as money, time, installments, early payments, are all linked with each other. To illustrate, one of the party’s basic interests might be getting the reimbursement of an amount of money without any specified deadline while for the other party it would be critical to obtain sum installments to settle the case suitably. By paying the whole amount claimed by sum installments the parties might have a mutually satisfactory outcome, rather than only paying the whole amount or nothing. The mediator needs to be creative enough to help the parties imagine different scenarios and outcomes of a conflict because when the parties are stuck, the mediator often has to use imagination to help them utilize hidden resources. For example, the parties can sometimes resolve the disputes not only with money but also with goods, possessions, or different types of resources. It is important for the mediator to impart comfort to the parties and put them at ease. A smile, a joke at the right moment, a nodding face sometimes makes a difference and helps the parties see things differently. Therefore, the parties may agree to continue negotiating, to stop the hostility towards the other, or to continue searching for a win-win solution instead of litigating.
The mediator is often confronted with both the mediator’s own weaknesses and the weaknesses of his situation. These weaknesses include cross-cultural challenge, financial insecurity, lack of contacts, and immigration status. These can all be overcome, but only with diligence on the part of the mediator.
One of the mediator’s weaknesses is the cross cultural challenge. Because the mediator is not an American native, the mediator must get some good insight into the “American culture” in order to effectively help his potential American clients. Perhaps the mediator may not understand some critical nuances that could undermine the outcome of the mediation.
Another weakness is financial insecurity. If the mediator has not sufficient money to support the mediator while building the mediator’s career and practice, it will be difficult for the mediator to head in the right direction.
Other difficulty to overcome is the lack of acquaintances to start a mediation career. Hence, it will be critical to the mediator to effectively network so as to get referrals from new contacts and colleagues. The last difficulty stems from the mediator’s immigration status and visa restrictions. The mediator needs to demonstrate to prospective employers, clients or colleagues that the mediator is legally authorized to work in the United States in order to be hired.
E. Education and Training
An effective way to accomplish financial success is by earning academic credentials. Because there are a limited number of high quality mediation programs and Master studies in Spanish speaking countries, the mediator should consider studying abroad to achieve his or her goals. The mediator’s next step is to decide what program will be of must assistance. The United States is an internationally-recognized leader in the alternative dispute resolution field. Accordingly, an excellent way to achieve further education is to pursue a Certificate, a Master’s or L.L.M. degree in dispute resolution in the United States. Some excellent universities have mediation or ADR programs. A wide variety of training programs are available that can accommodate a range of time constraints and cost concerns. Basic programs that introduce participants to the ADR field are available through universities, private consultants, and state offices of dispute resolution. Consequently, a good opportunity for a mediator is to take a full-time, intensive one-year mediation program at a United States university.(10) Harvard, Missouri, Pepperdine, Hamline, and Antioch Universities are leaders in the dispute resolution field. (11)
Once the mediator has completed a mediation program, without doubt the mediator will be much more marketable and better able to effectively help people deal with conflicts. Furthermore, if the mediator plans on practicing in the United States, by completing an LL.M. or a Master’s Degree in Dispute Resolution, the mediator will attain much more credibility and knowledge of the mediation field within the United States. (12)
Once the mediator has the determination to enroll in a mediation program in the United States, the next step is to make a decision on the school. Florida, Texas, Arizona or California are the most appropriate places for Spanish-speaking people because most of the Hispanic residents live in those states. California is a suitable place for a very strong reason: it is one of the most cosmopolitan states of the United States and it is a more open-minded place than other states for foreigners wanting to set up their professional practice. Secondly, the Spanish speaking population has been increasing exponentially over the last few years in California. “Hispanics are the nation’s largest minority group in the United States.” (13) In addition, it is often said that Spanish is now the “second language” (14) of United States. Accordingly, the mediator has better chances of using his fluency in the Spanish language as an asset for his work toward Spanish speaking residents in California.
1 Id at preface.
2 Randolph Lowry, Get Busy, Get Paid, Strategies to Develop a Financially Successful Mediation Practice, Straus Institute for Dispute Resolution, Pepperdine University School of Law, 2001.
3 See supra note 1 at
4 Forrest Mosten, Mediation Career Guide, A Strategic Approach to Building a Successful Practice, Jossey-Bass, page 19, 2001.
5 Id, at 2.
6 Id, at 20.
7 Id, at 21.
8 See supra note 6 at 24.
9 See supra note 6 at 24.
10 See supra note 6 at 224-226.
11 See http:www.law.missouri.edu/csdr/adr.htm
12 Ole Amundsen, Alternative Dispute Resolution 101, Finding a Course that Suits Your Needs, available at http://www.mediate.com/articles/amundsen.cfm
13 Lynette Clementson, Hispanics Now Largest Minority, Census Shows, N. Y. Times, Jan. 22, 2003, at column 4.
14 Gregory Rodriguez, The Overwhelming Allure of English, N. Y. Times, Apr. 7, 2002, at column 1.