Mediation has been an integral part of civil litigation in the United States for several decades, especially in the past 20 years or so. Crowded state and federal court dockets have materially contributed to mediation’s development as an alternative. means of resolving commercial disputes. But, unlike judges, mediators have no officially mandated authority to impose results. Mediators are imbued only with the power of persuasion at best. Among other things, the mediator’s ability to persuade requires relentless energy.
The mediator’s energy must be both intense and multi directional. It also begins well before the mediation event itself. Effective mediators begin to earn the parties’ trust in part by thorough pre mediation preparation. Mediation preparation often requires the mediator on short notice to read and absorb complex case histories, including facts and legal principles, that have evolved over a period of years. Written mediation materials sometimes involve several hundred pages of narrative and documents that must be read the night before the mediation. The subjects can vary from partnerships to trade secrets, employment, real estate, health care, personal injury, etc. In addition it is often helpful for the mediator to have pre mediation discussions with the attorneys and their clients. Mediators are frequently applying their pre mediation energy concurrently to more than one case.
It is at the mediation day itself that the mediator’s energy must be most focused and consistently applied. In a mediation the mediator can literally never rest. Whether the mediation lasts a few hours or a few days, the mediator must always be “on.” Parties, whether they know it or not, expect leadership from the mediator. If they could have figured out how to end their dispute without a mediator, they would have done so. Emotions in one camp or another are often intense or worse at mediation and it can take enormous energy by the mediator to maintain the patience to fully hear from aggrieved litigants and their counsel.
Mediator energy is also often required to identify and create an avenue to resolution or settlement. Many settlements require more than just the transfer of money. Non monetary considerations such as confidentiality and non disparagement are common to commercial disputes in employment, trade secret, professional negligence and other litigation. Settlement agreements are usually hammered out with the mediator’s active assistance a the end of a grueling day and the mediator must maintain their energy until the bitter end. And, if the case doesn’t settle at mediation, good mediators follow up with the parties and attorneys sometimes for weeks or months to achieve resolution.
None of the above is easy for even very experienced mediators. In my case, I’ve found physical fitness to be essential to maintaining a high energy level in a diverse mediation career of nearly 30 years. Fitness and a curiosity about how people and business manage to create sometimes spectacular difficulties for themselves, still allow me to arrive at mediation always prepared to “bring it.”
Energy and Commercial Mediation: Why the Mediator Must Always “Bring It”
By Gregg Bertram M.A., J.D., LL.M.