PR4P: Why do so few mediators excel and become well known for their expertise as mediators?
GB: There has been an advantage to having been in the field early on and having been a veteran in mediation. The mediators who succeeded early are reluctant to retire because they find the work very satisfying. I was fortunate to have had a long career as a mediator and worked for mediator provider organizations, such as JAMS and WAMS, long before I started my own business. Mediation is an extremely demanding profession. Sustained success requires great energy, discipline, preparation, invisible intensity and follow through in every dispute. Applying these qualities repeatedly and consistently is not for everyone.
PR4P: What are your preferred ADR topics that you offer at a ADR-related CLEs?
GB: I’m happy to speak on any ADR-related topic. However, I do enjoy presentations that focus on negotiation strategy because lawyers don’t learn negotiation in law school. Nor do law firms generally teach young attorneys negotiation skills. Once a lawyer begins his or her practice, they can’t best serve their clients unless they can negotiate. We’ve found that attorneys really want to learn tips and best practices to master negotiation, especially negotiation at mediation.
The reality in civil practice is that mediations occur exponentially, and more frequently than trials. Many lawyers do not do even have one trial a year, and most attorneys might go several years without going to trial. Many attorneys, though, might do several mediations a year, so learning about effective negotiation strategy is a way to optimize their skills.
I also enjoy CLEs that focus on arbitration. Information regarding best arbitration practices can be hard to find. Attorneys need to learn more about this important area of law, especially since most private arbitration is binding and final.
PR4P: What are the core attributes that an attorney must have to become a successful mediator?
GB: The most necessary attribute is the ability to immediately earn the trust of everyone involved in a mediation. The mediator must also be able to effectively communicate with all concerned. This means the mediator must be able to listen carefully to what the parties say and affirmatively communicate information to them. The mediator must also bring focused energy to every engagement. The mediator cannot be on autopilot. Finally, one of the most critical attributes of a successful mediator is tenacity, the ability to stay the course and persevere until the case is settled. You can’t be successful if you throw up your hands and say this is too hard.
PR4P: Are there any new issues or trending topics related to mediation or arbitration that you would like to discuss?
GB: There is an increasing amount of litigation focused on arbitration. Disputes over arbitration have become a much more heavily litigated area. Some courts are reviewing the arbitration process with less deference than has historically been the case. More and more litigants are also trying to circumvent arbitration clauses in contracts.
With respect to mediation, a trend occurring in the Pacific Northwest, is increasingly shorter mediation sessions. Even with high dollar amounts and complex issues in a given case, often parties are only agreeing to four-hour mediation sessions. This limitation puts a lot of unnecessary stress on the mediation process.
Another trend is the proliferation of mediation training offered by academic and for profit institutions. As one commentator has observed, we now have an excess of mediation training for jobs that do not and are not likely to exist.
PR4P:What advice do you offer to young attorneys who are just starting out in their mediation practice?
GB: The people who hire mediators, knowingly or not, demand a certain level of professional experience. It’s hard for young, aspiring mediators to get hired by older generations of attorneys or clients because they might be perceived as not having enough gravitas and /or the wisdom to be listened to, as well as the informed self confidence to manage the process effectively.