First published: ST. LOUIS LAWYER, August 7, 2002, at 10A.”
In mid-June, the University of Missouri-Columbia School of Law held its annual training for new mediators. Those of us who have been through that training call it the “baby” mediation training. Its principle purpose, in my mind, is to show the participants how little they know, even after they complete the training, and the significant challenges a mediator faces. Mediation is not for sissies.
After three days of training, many of this year’s participants began to realize that mediation is hard work. For the many lawyers and judges who participated in the training, several realized that good mediation requires rough and tough litigators to move out of their comfort zones. Good mediation requires a different set of skills from those used regularly by trial lawyers.
Missouri Supreme Court Rule 17 requires new mediators to have at least sixteen hours of “appropriate” training. These requirements are quite modest. Virginia, my new home, requires twenty hours of training. New Virginia mediators must also observe two mediated cases and co-mediate three cases for at least a total of five hours. The good mediators I know have hundreds of hours of training. One of the best mediators in St. Louis has over 500 hours of training. Good mediators attend the annual conferences sponsored by the Association for Conflict Resolution and the ABA Section on Dispute Resolution, where mediators more deeply explore the theories underlying approaches to mediation, share experiences with other mediators and buy the latest books on mediation and conflict theory. Good mediators also belong to local professional organizations like the Association of Missouri Mediators or the Association of Attorney-Mediators.
In The Making of a Mediator: Developing Artistry in Practice, Lang and Taylor identify the following hallmarks of artistry in a mediation practice: (1) Attending to detail, staying responsive in the moment and observing nuances in the parties’ behavior, tone and voice; (2) remaining curious and open to new perspectives on the stories the parties tell; (3) exploring all options and not being bound by limiting assumptions or simplistic characterizations of one party about himself or about the other party; (4) developing and testing formulations of the conflict and abandoning any formulations that are not accurate or stall the process; (5) showing resilience and responding to the events and circumstances of the moment without losing sight of the goals of the process; and (6) showing patience, vision and a clear sense of direction. Id. at 24-36.
In his book, Mediation Career Guide – A Strategic Approach to Building a Successful Practice, Woody Mosten identifies the roles a mediator plays as including: host, teacher, emotional counselor, referee, facilitator, idea generator, reality tester, negotiation coach, conflict manager and recording secretary. Id. at 35. He says that mediators are good listeners, effective communicators, patient, tolerant, neutral, empathetic, persistent, trustworthy, flexible, creative, positive, optimistic, and they can handle conflict. Id. at 23.
Walter Maggiola, in Techniques of Mediation, provides a list of the characteristics good mediators possess:
º The patience of Job, º The sincerity and bulldog characteristics of the English and the wit of the Irish, º The physical endurance of the marathon runner, º The broken-field dodging abilities of a halfback, º The guile of Machiavelli, º The personality-probing skills of a good psychiatrist, º The confidence-retaining characteristics of a mute, º The hide of a rhinoceros, º The wisdom of Solomon, º Demonstrated integrity and impartiality, º Fundamental belief in human values and potential, tempered by the ability to assess personal weaknesses as well as strengths, º Hard-nosed ability to analyze what is available in contrast to what might be desirable, [and] º Sufficient personal drive and ego, qualified by the willingness to be self-effacing.
Quoted in Mediation Career Guide at 31.
So my advice to the latest crop of baby mediators is this: Get more training. Read the books on the list of recommended readings in your training manual, then order more books on mediation and negotiation from the leading provider – Jossey-Bass Publishers. Read the articles at www.mediate.com. Look for any opportunity to talk with more experienced mediators. Look for any opportunity to observe an experienced mediator. Join the leading professional organizations so you receive their publications. Stay humble. I guarantee that the good mediators feel incompetent most of the time, but they are so drawn to the promise of mediation that they will do whatever it takes to assemble the skills required to feel less incompetent. Congratulations. And I wish you the best.
As you'll recall, we're in hour nine of the mediation. The parties have finally agreed to settle the antitrust litigation the Court ordered them to mediate ("we won't settle; we'll...By Victoria Pynchon