For well over 25 years, mediation has been a voluntary or mandatory alternative dispute resolution (ADR) process in many state and federal courts. Concurrent with the growth of mediation has been a proliferation of mediation training and a great deal of online discussion, blogging and tweeting about mediation. Much mediation discussion can appear academic, self -absorbed and indifferent to party expectations of the mediation process.
A number of interviews with attorneys and institutions, both public and private, who are regularly involved in mediation has identified leadership as a preferred attribute of effective mediators. Mere “facilitation” by the mediator in cases of high dollar value and/or intense emotion is insufficient. In such cases the mediator must be much more than a concierge.
When complex, difficult cases are mediated it is because, among other things, the parties have been unable to resolve their dispute directly. Whether they fully understand the reasons for impasse, they are in fact experiencing it, often with substantial expense and stress. They are then necessarily looking for active assistance from the mediator to provide a path to resolution. In these situations the mediator must be more than a passive figure who merely delivers messages from one party to another.
Instead, mediator leadership applies to designing the mediation process to fit the particular dispute (e.g., one day or more depending upon number of parties/issues) as well as efficient time management during mediation. Experience is required to effectively deal with both of these items. At mediation, parties do not appreciate being ignored by the mediator for long intervals, especially after having paid for the mediator’s professional services.
Substantively, exceptional mediators must be able to actively listen to party concerns and objectives while simultaneously seeking practical approaches to settlement. Mediation is above all a practical process. It is not a dress rehearsal for trial. There are real financial and emotional consequences for parties who are not able to settle their case. Therefore, it is incumbent upon the mediator to make every effort at, and even sometimes after, mediation to explore every settlement possibility. Such commitment obviously requires relentless energy and considerable interpersonal skill. It is debatable whether either attribute can be taught.
The good news is that the mediator as leader is almost always successful in helping the parties settle their differences. For mediators, the feeling of satisfaction after a successful mediation is often profound. even if temporary. For the full-time mediator, it is then on to the next mediation challenge!
Gregg Bertram M.A., J.D., LL.M. is the President and Founder of Seattle-based Pacific ADR Consulting. He is one of the most experienced and successful mediators in the U.S. Gregg and Pacific ADR's panelists mediate and/or arbitrate in every area of civil litigation at the highest professional level.
Leadership in Commercial Mediation
by Gregg Bertram M.A., J.D., LL.M.