You have questions, we have answers.
What is about mediation that most attracts you?
That’s a tough one; I have two, if that’s okay. First, is the peacemaking aspect. Often, when the process starts, the two parties have directly opposing views of a controversy and perhaps even some animosity. When the process works, the controversy is resolved, and perhaps the parties have found some common ground as well – beyond just the final number. Sometimes, there is a clearly discernable moment in a mediation when something clicks with one or both sides, and you just know we’ve turned a corner and are on our way toward resolving the dispute. That moment is extremely satisfying.
The second is the quick turn-around of the mediation process. The party participants in a mediation are often on the case for years before it comes to me. I have an opportunity to do a lot in a relatively short time. That’s some nice short-term gratification! I’m an advocate too, so I know all about the long-term nature of litigation. Mediation is a nice reprieve.
You’re catch-phrase is “mediation with preparation.” Could you elaborate a little?
Sure. I expect more preparation from the parties, and I make sure I’m thoroughly prepared myself. I ask for both shared and confidential submissions. I review pleadings and any pending substantive motions. And I confer with counsel by phone several times before we sit down at the mediation table.
I’ve had the experience of sitting down with mediators as an advocate when they were not prepared and had not even read the submissions provided in advance. I was attending with a client and was embarrassed to be paying a premium for such poor preparation. I was embarrassed for the mediator too and swore that would never be me
I note your guidelines require party attendance. Why?
It’s almost a waste of time otherwise. The parties and the decision makers need to be there. They need to be enveloped in the whole mediation dynamic. Someone available by phone is far less likely to be flexible as compared to a party that has been exposed to the full ying and yang of the mediation process
What are critical qualities of a good mediator?
I would say, listening, patience, and the ability to control the room, when necessary, are near the top. Listening is so important. And I mean active listening – not a stoic neutral, aching to get to the caucuses. This is particularly critical when there are a lot of emotions in play. Either directly or through an advocate, it is very important that the parties get to tell their story and that the recipients, especially the mediator, be actively engaged. Very often we are providing the parties with their “day in court,” and it’s important to make it meaningful for them.
It is also so important just to listen for the nuance of the parties and the language they use. When a party previously unwilling to move at all, suddenly won’t move “unless” or “until” something else happens, that’s a signal and a tool the mediator might be able to work with. Those are two great words that signal flexibility.