When a dispute is truly ripe for mediation, who you choose to mediate is likely to affect the outcome. When both parties go into the mediation willing and expecting to settle, most competent mediators should be able to achieve a successful outcome. However, what is meant by being a competent mediator? To choose the right mediator you must consider the mediator’s skills, expertise, and stature.
Knowledge about the process of mediation, and the ability to use that knowledge to affect behavior, are the mediator’s “skills.” All mediators know that an aggrieved party must be permitted to tell his story, and many are able to listen actively. If the mediator demonstrates the process skill of “active listening,” the client will be satisfied that he has been fully and fairly heard.
Mediators also bring different approaches, which emphasize different process skills, to the mediation. Their training, or experience in resolving certain types of disputes, may predict the specific skills they bring to mediation. For example, some family mediators avoid caucuses and may be skilled in mediating with the parties face-to-face. Community mediators may emphasize a transformative style approach and be skilled at helping parties see their dispute in a larger context. Labor-management mediators may be skilled in group dynamics, while retired judges may bring persuasive skills they developed in settlement conferences. Knowing the general approach and process skills of different types of mediators is useful in selecting an appropriate mediator for your case.
Expertise may be in the form of legal or non legal backgrounds. Experienced lawyers generally know the advantages of having a mediator with legal expertise. When this expertise is in a specific area of law – such as employment law—you can reasonably expect the mediator to quickly grasp the legal nuances of each side’s position. However, one does not have to have a legal background to be a competent mediator. Some mediators possess expertise in non-legal areas that can be critical to resolving a dispute.
For instance, if the dispute involves the alleged copying of an automated staining device that employs capillary action or surface tension in a unique fashion, a scientific background would help the mediator quickly grasp the factual nature of the dispute. Mediators with a business background, a government agency background, or community service background might be a better choice depending on the type of dispute. A more important issue to review here would be the credentialing and continued training the mediator has had to date, the number of mediations a person has performed, and the agreement success rate they have achieved.
Unfortunately, there is a movement in California among the legal community to pass a law whereby only those with a law degree can be a mediator! A law degree does not necessarily make one a competent mediator as attorneys are generally trained to be adversarial in their approach to a dispute. As a sidebar here, when I started my mediation career in 1998, most attorneys felt that mediation was too touchy feely to get any “real” agreements completed. And now it is a new profit center in law practices across the nation!!
Stature, like charisma, is intangible. It is a quality the mediator brings which affects his or her ability to move the parties to a settlement. It is made up of the parties’ and the public’s perception of the mediator. It is difficult to quantify, but it is significant, and consequently worth analysis. When parties choose a mediator, personally or through referrals, they confer stature on the mediator by their choice. Their choice expresses confidence that this mediator has the ability to successfully resolve their dispute. Although they may not have any experience with this mediator, they want to believe that this person can and will bring them to agreement.
High achievement and professional respect are often the basis for an individual’s stature within a particular professional and social community. Parties may choose a religious figure –a priest, rabbi, or minister – as mediator because they are themselves religious and trust this individual to be neutral. Parties belonging to the same profession may choose someone with high status within that profession as their mediator. For instance, feuding doctors may choose a medical college dean to mediate their conflict. They choose the dean because of their understanding that to be successful the dean must possess a high degree of skill at dealing with fractious doctors.
So if you are looking to hire a mediator, it may be helpful to research their skill level, their expertise, and stature in the community. In my 17 years of practice as a mediator, the greatest skill I feel a mediator can have is compassion and support for the human desire to resolve their disputes in a win-win situation for all parties. Next month we will take a look at the types of mediations and review the major styles that are currently being used.
About Your Columnist
Michelle Burkart is a featured columnist for Women Taking Charge, the official blog of Connected Women of Influence, where she covers negotiation and conflict resolution. Currently, Michelle is the owner of TH!NKresolution, where she is a credentialed mediator; Hearing Officer for the San Diego Housing Commission; Member of the San Diego Superior Court Mediation panel as well as the NCRC Commercial Mediation Panel. Michelle manages and conducts business mediation services for TH!NKresolution to include pre-contract facilitation, contract disputes, personnel issues, conflict coaching and training, family business disputes, government agency disputes, and caregiver mediation.