This article is meant to be a provocative piece on a long discussed subject in the field of mediation. It represents my personal opinions as derived from doing over 900 mediations in the last 6 years with over 4500 face to face hours, and another 1000 hours of Internet based on line mediation. It is meant to challenge some existing notions on both sides, but particularly to provoke reaction and thought within the industry of ADR/Mediation. In doing so, I am intentionally taking an extreme position, that being, “If one is truly an expert mediator then subject knowledge is totally superfluous.”
As qualification for writing such an opinionated article, I offer my credentials as an “Accredited Professional Mediator” by the NJ Association of Professional Mediators, my present status as a “Designated Mediator/Mentor” for the NJ State Superior Court and Chancery Court, 5 years mediation for the US Equal Employment Opportunity Commission, 2 years using Internet Based Mediation, either as an adjunct to ongoing mediation, or as the sole method of communicating in a mediation, such as for eBay or any other organization that might use this method, as well as my own use of it, privately, without association with any other group or organization and finally, 6 years of Community Dispute Mediation in 3 different Municipalities in the State of NJ.
I propose that there is no reason why an expert mediator needs to know anything about a particular case before walking in the door; and how this mediator WILL be in most cases more successful than a “subject expert” unless that subject expert also happens to be an expert mediator.
In many cases, I have been presented with situations that did require me to have knowledge of certain things. But on virtually every occasion that this was the situation, I had been able to get that knowledge from the parties, the parties’ attorneys or the parties’ experts or the expert reports. Even in cases where neither side knew the information, I have in a sense, been able to go beyond neutrality, and collect information as a neutral fact finder, which is accepted by both sides, or by all sides, as I frequently am assigned “Complex Cases” which are cases with 3, 4, 5 or more named parties.
If a legal point is considered or argued in the mediation, then there is a citation, and there is a regulation, and as the mediator, I have always been able to access these citations and interpret just as well as the attorneys, and the approximate chances of prevailing. But I let them do it for me rather than the other way around, it is more realistic to the clients, to hear their attorneys say they have less than a 95 to 100% chance of winning. This is a common client misconception easily corrected by asking the attorney to evaluate his chances of prevailing in front of the client. The client does not have the familiarity that the attorney does with the legal system. The client is not aware, that sometimes a judge’s decision may depend more on what he had for breakfast, than the legal merits of the case. Judges and juries are notoriously unpredictable.
This is a heavy dose of “reality agent” behavior by the mediator. And most mediators who have done this find it almost amusing to see the client’s head snap toward their lawyer and say, “What do you mean a 50% chance???”
This is specifically to point out just one of the tools that an “expert mediator” would use, no matter what the conflict. But what would a “subject expert” do in the same situation? Well, he would mostly be more businesslike. He would try to evaluate the facts. He would be a bit like an arbitrator who asks a lot of questions. And then, most of the time, the subject expert is fairly directive in suggesting how this conflict can be corrected, because he has the experience in these matters. (Author notes this characterization is a generalization.)
Here is the problem with that type of mediation. What happened to the parties? What if the conflict has nothing to do with the way the I-Beams are cantilevered and how much weight they can really support, but instead, it actually revolves around who told who what, and what their information or motivation might have been for doing that. And then, now that we know the underlying reasons, what can we do about it to correct or resolve it?
All that interaction and productive discussion goes right out the window with a “subject expert.” Because it was my feeling that subject experts ultimately become seriously directive and evaluative in their work, I chose NOT to specialize in any particular area. Yes, I am a “subject expert” in Labor & Employment, Intellectual Property, Environmental, Contract Conflicts and several other areas. I have a BS Biology and an MBA and 20 years in executive management, 6 years of which was with the Fortune 500. I am not a lawyer or a mental health professional. I am often chosen specifically because I am NOT an attorney, particularly in divorce mediation. But surely, I am not a subject expert in the feelings of Mrs. Partridge vs. Mrs. Jones with regard to the aesthetics of the garden plantings. This is totally a matter of the parties’ self-determinations working in coordination.
What kind of subject expert can solve that mediation, a Landscaper? Do we believe that a landscaper can be an expert mediator, or even an adequate one? Yes, of course we do, but not the majority of them. Just like attorneys are automatically handicapped in being a neutral, because they have been taught and practiced to be an advocate, just as a garbage hauler may have innate talents as an expert mediator, one surely would not see him as a subject expert in mediating a Union contract, still he may be an expert mediator. The lawyers can handle the language, the mediation is another thing.
What Is An Expert Mediator?
Without going through the many characteristics that make a good mediator according to those experts in the field and giving a whole bunch of citations, I will just quickly note what I think an expert mediator is:
1) Good Communications Skills
2) High Level of Empathy
3) Good Active Listener
5) Creative Problem Solver
6) Able to relate to people on several different levels
7) Minimal serious prejudices, but at least a recognition of what they are
I think that about covers it. Can this be taught? Yes, it can be taught, but not completely. I have mentored people with 100 hours of training, and after 15 hours, I just said, “Forget it, go back to what you were doing before.” And I have mentored people with only 18 hours of Mediation training per se and within 2 hours, they are co-mediating with me. I believe it has something to do with either innate talent, or a life experience that involved a lot of compromising and altruism. But I wonder if a person can develop that amount of empathy and understanding and communication skill and creative problem solving without having been born with some inherited proclivities in that direction. And additionally, I believe the more life experience, and the more personal pain a mediator has endured are the most important two items for a mediator in developing empathy and creative solutions.
When it comes down to it, we really have to admit, that this is such a hard business to make money in, that we really have to love what we are doing to continue down this road. For me, every mediation is a transformative experience. Not that I advocate any particular mediation style, I use what I would I would call a “Facilitative Shell” with a gigantic toolkit that consists of every other thing I have ever heard, read or learned about mediation, be it Transformative, Facilitative, Evaluative of Narrative or whatever style. I use what is appropriate for the parties and the conflict at hand. But, every mediation is a transformative experience, because an unusual thing happens to me when I cross the threshold of a mediation room. All of a sudden, I have no personal problems. None. I have been in serious physical or emotional pain, and once I crossed the threshold of that mediation room, it disappeared. I have been financially distressed to a very serious extent, but when I walk into that room, I don’t have any problems. The only concerns I have are the concerns of the parties in front of me. And if I resolve the conflict, it almost doesn’t matter to me if it is a pro-bono or paid mediation, as long as I can pay my mortgage, eat and do the usual necessary things of life, the act of mediation and lasting resolution is the ultimate experience for me. I would mediate rather than dry fly fish for trout, my second favorite thing to do.
Subject Mediators Are “A Dime A Dozen”
If you want a subject expert, well, just look in the phone book for someone in the business of the subject of the conflict. It is so easy to find a subject expert, that what would we need expert mediators at all for? What a good question, what do we need mediators for?
It has been my continual experience that the underlying reason for a conflict is virtually never, if at all represented by what it says on the “charge sheet” provided to the mediator. In fact, I have had dozens of contract mediations, labor mediations, community mediations, property mediations, where in the end, or really in the middle, it turns out we really have a love triangle as the underlying conflict. Now, what would a subject expert do for such mediation? Should he say, “Well, I am an expert on asphalt paving, you really need an expert mediator, not an asphalt expert”? I don’t think so, not if we want to have a credible industry.
The fact that the underlying problem has little or nothing to do with the charge is almost axiomatic to expert mediators. Half the time in mediations, I hardly glance at the charge sheet, especially in Community Dispute Mediation, I just ask the Plaintiff to tell me why we are here. After that, I let the Defendant tell me what they feel about the Plaintiff’s statement, and we are off to the races. Usually, after this initial statement I suggest a caucus with one side or the other, usually the Plaintiff, but not always. But I always promise my parties one thing, “If I caucus with one side, I will always caucus with the other side immediately after to provide equal access to the mediator.” Can we rely on a subject expert to reassure the parties this way, without significant mediation experience? I think not.
In fact, I would go so far as to say, that any really effective “subject expert mediator” is also an “Expert Mediator” and could mediate any case that came his or her way. Have I ever had mediations that rely on the interpretation of the law? Absolutely, I have, all the time. “But the beauty of mediation,” I tell the parties, “is that we can do anything, anything at all within your control here to resolve this thing, as long as it is not illegal. You cannot do that in court, you will not have control, and you will probably not even speak.” That is why we tell our parties that “Mediation operates in the ‘Shadow of the Law.’”
Conclusion: What’s Is The Difference Between An “Expert Mediator” and a “Subject Expert?”
So then, what really is the difference between a “subject expert” and an “expert mediator?” I would propose to answer that simply and succinctly: Nothing! What do I mean by nothing? I will further elucidate.
Successful “Subject Expert” Mediators are really “Expert Mediators” who have chosen to specialize in one area. This usually is because of prior connections, prior interests or some other reason. Any marketing consultant will tell us that specializing in an area is a much faster way to get a viable business going. Much less time and expense and much more focused and targeted marketing can be used.
Many people chose some field for some reason and then just stay there if things are going well. Why not, the whole business is based on networking and marketing, if you can make enough doing little or none of it, why take on any additional expense, just take the cases, mediate them well and make the money. This happens, but it is not totally fair to the subject experts. Often it is something special that keeps them within the particular industry or area that they are mediating. But the fact is, if they do not become “Expert Mediators” pretty quickly, they will not remain desired mediators at all, subject experts or not. And thus, in reality, there is little or no difference between effective mediator types. They are all “Expert Mediators.” Some of whom specialize in a particular area.
As noted in the beginning of this article, this is written to provoke opinion. If I answer my own questions, it is not because I assume I know the answer, but for opposing opinions to be exposed and then added to this debate. If I take a slightly extreme position, it is because it elicits more reaction from readers. One does not usually just read such an article and shake their head yes. Even, I as the author don’t do that. So how could the reader. But what it does do is present a position. I openly offer anyone to disagree with any aspect of this opinion paper.
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