What Skills Should You Look for in a Mediator? Observations and Approaches
October 29, 2013
Business Law Advisory
Having now plied my skills in facilitative mediation since 1999, I have taken the time to reflect on the most valuable skills a good mediator should strive to develop. They are, in no particular order:
- Flexibility/Adaptability – Each case, each mediation is situational, with unique facts, unique personalities and unique interests. A good mediator should not only attempt to gain as much knowledge of these in advance of the mediation from the parties or their counsel, the mediator must be prepared to adapt his or her approach, style and techniques at the mediation to the particular circumstances and participants.
- Listening – Too often, we as mediators see a path to resolution that we believe will or should be the path taken by the parties and their counsel. The danger here is that we will filter everything we see and hear through the lens of that envisioned path and stop really listening the parties. At the very least, this results in wasted time; at worst, it dooms the parties' efforts at resolution.
- Patience – Mediators, particularly attorneys who are mediators, tend to be oriented to problem solving and are often very quick to the end-game. In other words, we often see where the settlement lies, either in exact or approximate terms, early on in the process. The value of this realization and basic problem solving orientation, however, is lost if we can't or won't exercise the patience that's necessary to allow the parties to get there. There is value in the process!
- Creativity – Mediators should approach every mediation with the notion "The only dumb idea is the one not shared, the only dumb question the one not asked." Even silly ideas can be the seeds that germinate into solid conceptual bases for resolution.
- Humor – To be sure, there are any number of situations in which humor may be entirely inappropriate. But especially in long and difficult negotiations, good-natured humor can alleviate tension, decrease participants' impatience with the process, and serve as an effective tool in dealing with the occasional absurd positions taken by those participants.
- Writing – Mediation articles and texts are replete with admonitions that mediators should let the parties be the scriveners of their own settlement agreements, and I agree that is the preferred course. I reject, however, any suggestion the mediator should never be involved in the drafting process, at least so long as the mediator is a licensed attorney. Too many times, mediators are confronted with parties or parties' counsel whose desire or ability to write is simply not up to the task. The mediator's ability to write well is imperative in those situations.
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