The right of self-determination in mediation, and the parties’ first attempt at collaboration, starts from the decision to mediate (if not mandated by an agreement, order, or statute), and from the act of choosing an appropriate mediator. Their right to self-determination on the issue of choosing a mediator, whether that choice is based on cost, qualification, experience, ability, effectiveness, or on any other basis, is critical to framing the mediation and to their hopes of success. Therefore, it is very important that the mediating participants are comfortable with the choice and that they are confident that the mediator of choice will be able to help them resolve their dispute in an effective, compassionate, and thoughtful way, and at a reasonable price. If there is any degree of discomfort, regardless of the reason, it is the right decision to look for another mediator. Here are some of the issues the mediating parties should consider as they consider who to choose as their mediator:
The mediator should have more than one tool in his/her tool belt. If he/she only has a hammer, then he/she may only see nails. For example, your mediator should be knowledgeable and skilled at various conflict resolution models, including, but not limited to the following:
The Thomas-Kilman Conflict Resolution Model – The mediator should understand the conflict between negotiating parties’ desire to satisfy their own interests and concerns, and the interests and concerns of their counter-part. This requires an understanding of the five basic conflict resolution styles used, the pros and cons of using them, and how to help the parties navigate from one to the other. The five styles are: 1) Competition; 2) Avoidance; 3) Accommodation; 4) Compromise; and 5) Collaboration. A skilled mediator will be able to recognize the style being used and help the parties move from Competition to Collaboration, which dramatically increases the likelihood of reaching an agreement at mediation.
The Conflict House Model – The mediator should understand how to help the parties have difficult conversations in a constructive way without alienating each other with trigger words or acts, attacks, micro-aggressions, etc… Using this model, a skilled mediator will be able to help the parties, and their lawyers, set a constructive and positive tone before the mediation starts in a confidential pre-mediation conference. Done effectively, on the date of the mediation, the parties can avoid derailing the mediation, and the opportunity to reach an agreement, at the beginning of the process.
The Empathy Model – The mediator should understand how to help the parties recognize their inherent empathy for the other parties, and build on that empathy and understanding. If done effectively, throughout the process the increased empathy will help the parties focus on the critical underlying interests, as opposed to positions. This also accelerates the potential for an agreement.
The Value Creation Model – The mediator should understand how to help the parties use the information they know about each other, and that they learn during the mediation process, to create a value proposition that will help the mediating parties do the jobs they have to do regarding the conflict, reduce the pains experienced, and increase the opportunities for the mediating parties to get the gains they want.
The Speed of Trust Model – The mediator should understand that trust has several waves, including self-trust, relationship trust, organizational trust, market trust, and societal trust, and how to help the parties demonstrate: 1) their integrity while acknowledging the other side’s integrity; 2) their intent in a constructive way while seeking to understand the other side’s intent without attacking or feeling attacked; 3) their capabilities and the other’s side’s capabilities, and hone in on the relevance; and 4) the ability to produce results on both sides, which is critical to an effective mediation agreement.
The Behavioral Model – The mediator should understand how his/her behavior and the behavior of the mediating participants affect the mediation process, and consciously work towards modeling the right behaviors, and encouraging the same with the mediating parties. Here is a list of the behaviors:
Taking Straight
Demonstrating Respect
Creating Transparency
Righting Wrongs
Showing Loyalty
Delivering Results
Getting Better
Confronting Reality
Clarifying Expectations
Practicing Accountability
Listening First
Keeping Commitments
Extending Trust
Inspiring Trust
The Action Plan Model – The mediator should understand how to help the parties create a reasonable and workable action plan.
The Transformative Model – The mediator should be able to help the parties transform from feeling victimized to feeling empowered during the mediation process. This is critical, as mediation is based on self-determination. A good mediator will understand how to help the parties transition from the feeling of being a victim to the feeling of empowerment, which helps them move from competition to avoidance, to accommodation, to compromise, then finally to collaboration, which may mean that the mediator has to be skilled at helping the parties move through the 5 steps necessary to get there.
The mediator should have a high degree of emotional intelligence. The mediator should be able to regulate his/her own behavior in such a way as to take a leadership role during the mediation, understand how to regulate his/her relationship with the parties and their counsel, and help the parties regulate their relationship so that they do not alienate each other, but work constructively towards a common resolution.
The mediator should have relevant and extended experience as a mediator. A novice mediator, including a mediator who is transitioning into mediation as a second career (such as a retiring attorney or retiring judge), usually does not have the knowledge, skills, experience, and abilities to be as effective as a mediator who has been mediating for several years. In their professional life cycle as a mediator, they are, in essence, baby mediators. While these mediators may have the core subject matter knowledge and experience, they still need to develop their mediation knowledge, skills, and abilities to be effective. Ideally, the mediator should be entering the prime of his/her professional career as a mediator.
A mediator with some gravitas can be useful. An experienced attorney, a retiring attorney or retiring judge may have the gravitas built up from their years of experience and/or former profession, which can be helpful to instill a sense of confidence in the parties and their lawyers. This gravitas can be especially helpful in cases where the parties are looking for “parental” guidance in the processor will rely on the mediator for an evaluative approach.
Consider the value of using a mediator that will give you the best chances of resolving your dispute before going to court. Paying a “good” mediator a higher rate before litigation can save tens of thousands of dollars in litigation costs. A day of mediation can cost the parties approximately $2,000.00 each with an experienced mediator who charges $500.00 per hour, whereas prosecuting and defending a lawsuit usually ranges, at the low end, $25,000.00 in lawyers’ fees, plus costs (including another mediation before trial). Litigation costs can easily exceed $100,000.00, depending on many factors, before a final resolution. In addition to the financial costs, there are emotional costs, lost opportunities (opportunity costs), and loss of time, and relationship loss, which can compound the “expense” of litigation.
When lawyers in a case choose the mediator the lawyers should fight the urge to use a colleague or friend as a mediator because of their personal or professional relationship, and should, instead, focus on the above factors, and other relevant factors such as subject matter expertise.
For more information on how to choose the right mediator for your case, how to become a mediator, or how to develop the knowledge and skills you need to be effective in mediation, please email me at attorneypersad@cplspa.com. I am also available to mediate your cases.
