As the owner of a Pacific Northwest mediation and arbitration firm (the work is commonly known as “ADR”), it is my responsibility to make sure that my panel members and I perform all ADR services at the highest professional level. Naturally, one might think that such an aspiration is expected and required by the ADR marketplace. Not necessarily.
The ADR marketplace is not an especially logical landscape. Mediation is a reputational field that is populated by attorneys, retired judges (who are, of course, attorneys), counselors, engineers and others of no identifiable profession. As a result, mediation is not closely regulated by any single governing body. Although attorneys are regulated by state bar associations, mediation is not generally regarded as the practice of law. Nor is arbitration uniformly viewed as the practice of law. Absent close regulation, then, isn’t the marketplace itself a barometer of mediator excellence? Again, not necessarily.
The mediation marketplace should, but does not always, require superior performance by practitioners. Mediation consumers can be quite irrational when they select a mediator and perceptions of the same mediator can vary widely. For example, some attorneys may overthink how a mediator candidate’s personality may relate to other participants. Or undue emphasis may be placed on a mediator’s very specific law practice subject matter background. However, studies have shown that what is most important about effective mediator performance is their ability to universally inspire trust. Adept mediators also must use various approaches to fit the particular personalities, facts and circumstances. A mediator’s one size fits all approach is doomed to failure.
At Pacific ADR, every panel member is an experienced, accomplished attorney. Most are still affiliated with their law firms and one is a part -time United States Magistrate Judge. A majority have also assumed leadership roles within their firms or within ADR organizations. What other attributes do Pacific ADR panelists possess that makes them effective mediators?
Each of our panel members has the demonstrated ability to inspire the trust of attorneys and their clients. The first step in achieving that objective is to thoroughly prepare for and to always serve impartially at every mediation. The mediator must always be a neutral figure. However, being neutral should not be confused with passivity. Properly performed, mediation is always an active, very demanding process. Our mediators are expected to provide active leadership and effective management of the mediation process at every moment. This requires considerable energy and commitment before and during the mediation and even afterward if the parties have been unable to fully resolve their differences. Not all ADR practitioners are able to bring sustained, disciplined energy to each mediation.
Mediator training has become a nationwide cottage industry, even though it is questionable whether demand for mediators is increasing. Some of this training is also provided by individuals who themselves have performed few, if any, mediations. Teaching skill aside, it’s debatable whether the essential skills for sustained mediator success can be taught at all. Much depends upon a mediator’s innate personality traits, ability to absorb often massive amounts of information in short order, and the facility to swiftly react to the unexpected in a mediation. Surprises at mediation are common. They can arrive in the form of sudden important court rulings, the arrival of people who no one expected to attend, or even the unexpected physical incapacity of an attorney or party during the mediation. Skilled mediators are able to adapt to these and other surprises.
Naturally, the particular internal methods used at Pacific ADR to teach best mediation practices are proprietary and confidential. That said, a strength of the organization is that we are constantly able to learn from each other. We all have had different practice, social and cultural backgrounds. We embrace and encourage diversity and acceptance of those who come from cultures different than our own. We also train ourselves to listen most carefully to those who engage and trust us to resolve their often complex, difficult disputes. Above all, we never forget that trust is never a given. It must be earned.
Mentoring
Mediators:
The Why and the How
by Gregg Bertram M.A., J.D., LL.M