Lawyers’ Increasing Sophistication in Mediation

Lawyers are increasingly more skillful in representing clients in mediation.  Many lawyers are now trained as mediators.  Law schools increasingly teach the skills required to represent clients in mediation.  

A recently published book finally puts in one place much of the good advice on representing clients in the process.  SeeHarold Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2d ed.).  

Dwight Golann has also authored a new book called Resolving Disputesthat he says reflects the perspective of lawyers representing clients in ADR processes.  Several law firm websites now have pages dedicated to preparing clients for mediation. 

Some lawyers are so skillful that they are “borrowing” the mediator’s power by influencing the structure of the process; getting the mediator to focus on the issues identified by the lawyer; getting the mediator to support a “hard bargaining” strategy; asking the mediator to explore imaginative options; using the mediator’s neutrality to enhance the attractiveness of the client’s offer; asking the mediator for information about the other side; using the mediator to educate an unrealistic opponent; and asking the mediator to apply impasse-breaking techniques.  

At least one scholar argues that mediation’s adoption of attorney dominance of the process, evaluative interventions, marginalization or abandonment of joint sessions, and a focus on monetary settlements represents a successful adaptation of the process to the needs of “litigotiation.” 

Other scholars have found that “lawyers believe [] their primary role in mediation is to provide a check on unfairness” and to protect their clients from undue pressure from the mediator or “unfair bargaining advantage that the other party may have.”  Studied lawyers reported that in mediation they tried to reduce conflict, act reasonably, and facilitate settlement.  Based on the research, these scholars ask us to “bring in the lawyers” to mediation.

I agree, and discuss that topic in my next posting. 

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original omitted in this posting).

The Vanishing Civil Trial

A recent study shows that nearly all federal cases settle before trial.  In 1962, judges and juries resolved 5,802 civil cases, defined as tort, contract, prisoner, civil rights, labor, and intellectual property cases.  These trials constituted about 11.5 percent of the dispositions of the 50,320 cases filed with the courts.  

By 2002, parties had increased civil case filings to nearly 259,000 – an increase of 146 percent over 1962 filings-- but the dispositions by trial fell to 1.8 percent.  These statistics, taken from data compiled by the Administrative Office of the United States Courts, show that federal judges tried fewer cases in 2002 than they did in 1962.   

Judge Patrick Higginbotham reported that in 2001 “each United States District Court judge presided over an average of just over fourteen trials a year.  Over half of these trials lasted three days or less in length and 94 % were concluded in under ten days.”  

In other words, most judges spent less than forty-two days presiding over trials.  Each judge handled six “other contested matters,” but taken together, the traditional trials and the “other contested matters” averaged a day or less in length.  In 1962, the average federal judge conducted 39 trials each year.

State court statistics give a similar, but yet incomplete, picture.  Based on data provided by the National Center for State Courts for 22 states, civil jury trials fell by 33 percent during the period of 1976 through 2002.  Bench trials fell to 15.2 percent of total civil dispositions in 2002.  

Scholars and commentators are not quite sure what to make of the data.  Some suggest that increasing use of ADR, especially mediation, explains the drop in the number of trials. 

What the data says to me is that lawyers play a more significant role as agents of settlement than as litigation advocates.  I explain to my students that they will far more likely use over their lifetimes the negotiation and mediation skills that I teach than they will likely use the rules of evidence or their appellate advocacy skills.   

This article excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original omitted here). 

The Who of Mediation: Lawyers in the Mix

In late October 2005, I conducted a mediation involving four parties, all of whom were represented at the mediation by counsel.  The presence of lawyers at the mediation was itself unusual according to some limited empirical research.  Two studies in Arizona, two studies of California courts, and a study of sixteen courts nation-wide indicated that in divorce and child custody mediations held since 1992 to 2001, seventy-two to ninety percent of the mediations involved one pro se party.  Thirty-five to fifty-six percent of the mediations involved two pro se parties.  

Data assembled by the National Center for State Courts showed that lawyers played no role in mediation in forty-three percent of the 205 court-related divorce mediation programs studied.  Other sources report that up to eighty-eight percent of family law cases, not necessarily in mediation, involve one pro se party.  

Moreover, sixty-nine to seventy-two percent of cases filed in a Wisconsinurban area court involved at least one pro se party.  If a court referred these parties to mediation, they likely did not retain counsel to represent them in the process.

Lawyers as Spoilers?

Some mediators prefer that lawyers do not participate in mediation.  They consider lawyers potential “spoilers” because the traditional adversarial role they play. Perhaps their mindset, may keep them from exploring creative solutions to the dispute.   Some mediators also believe lawyers take an adversarial point of view to information gathering and exchange.  Accordingly, lawyers may view information as simply enhancing a client’s legal case and should, therefore, be used for winning.  It should not be shared except at trial and certainly should not be shared to explore value creating trades or other settlement options at mediation.  

Other commentators contend that lawyers compromise the mediation process by jealously viewing it as an intrusion into their domain of competence.  They also argue that lawyers cannot adapt “professionally to a situation of controlled and defused, rather than polarized and contentious, conflict.”

 Lawyers’ Views of Mediation

These lawyer attitudes found expression in some recent research.  Beginning in 2000, Julie Macfarlane, a Canadian law professor, analyzed forty lawyers working in Torontoand Ottawa on their attitudes about a new rule requiring mandatory mediation of commercial cases.  She developed five “ideal types” to characterize the comments of the lawyers.  

The “pragmatist” viewed mediation as an extension of the adaptive settlement role these trial lawyers played before courts required mediation.  Mediation, they believed, offered an early opportunity to assess and prepare a case, to limit the rising costs of litigation, and to provide to business clients the rapid resolutions of disputes they sought.   Yet, these lawyers still saw themselves as taking the lead in the mediation process.

“True believers,” another group indicating positive attitudes towards mediation, used quasi-religious metaphors to talk about how mediation had affected their orientation to practice strategies and conflict resolution.  They felt “converted” or “transformed” in the ways they sought to meet clients needs and expectations and in identifying the changes they had experienced personally and professionally.  They viewed mediation as a new form of adversarial process and recognized the distinct skill set it required.  

A true believer often ensured that his or her client played an important role in the mediation process.  They were more likely to use non-lawyer mediators who could handle and appreciate the heightened emotions of the parties to the disputes.

The “instrumentalist” used mediation simply to advance the client’s unchanged adversarial goals.  The instrumentalist either used the tool strategically to fish for information or to reduce the expectations of the opposing party.  The lawyer played the dominant role in the process.  He was more likely to use an evaluative mediator and was surprised if the process resulted in non-monetary or integrative, rather than distributive, solutions. 

The “dismisser” regarded mediation as the latest fad, offering little over traditional unassisted lawyer-sponsored negotiation.  He acknowledged that mandatory mediation required earlier preparation of the file, but viewed this development as an intrusion on his or her autonomy and control.  The dismisser often viewed the utility of the mediation process as providing a “reality-check” for his unruly client or for opposing parties who, at least from his viewpoint, were poorly represented.  The dismisser sought evaluative mediators with judge-like authority. 

Finally, the “oppositionist” viewed mediation as a danger to the legal system, to the role of adversarial dispute resolution, and to his or her role as a winner-takes-all advocate.  He or she viewed mediation as a response to government inefficiencies and court back-logs.  He or she viewed mediators as unskilled and manipulative.  Accordingly, mediation felt risky for him or her because of the perceived loss of control. 

 Several factors seemed to affect these attitudes.  Lawyers who had had more experience in mediation tended to view it more favorably.  Also, when the leadership in the local legal community strongly supported mediation, lawyers in that community also tended to show more support for the process. 

In addition, attitudes of lawyers reflected the attitudes of the businesses or industries from which they drew their clients.  Some of those clients were more litigious and some more settlement-oriented.

Macfarland asked whether we could expect to see, over time, more convergence in the attitudes of lawyers.  With time, they would participate in more mediations and become more aware of the different skill set mediation requires that is distinct from the traditional positional bargaining skills they already have.  At the time of the research, one lawyer explained: “I’m still at a loss as to what role I really play.”

A recent study by the ABA Committee on Dispute Resolution examined what factors affect an attorney’s advice to clients to try ADR.  At least sixty percent of the 2,330 attorneys surveyed had served as an advocate on behalf of a client in a case using ADR or they had served as a third-party neutral. 

The survey concluded that if an attorney had any experience with ADR, he or she was much more likely to recommend ADR to a client.  The article concluded by recommending that more attorneys be encouraged to participate in ADR, with the message of the study seeming to be “try it, you’ll like it.” 

A study conducted in 2001 of Arizona lawyers, most of whom had tort or personal injury practices, showed that lawyers were less likely to discuss ADR options with their clients or opposing counsel if they were less familiar with the processes.  Attorneys who expected mediation to produce earlier and satisfactory settlements also thought the benefits of ADR outweighed any costs associated with the processes.  Less knowledgeable attorneys were less likely to believe that ADR would produce benefits for their clients. 

Taken together, the studies suggest that mediation conducted by skillful mediators sells itself.  Over time, lawyers who have good experiences in mediation and feel competent in the new process will recommend its use to clients.  The research may also suggest that as lawyers become more skillful in the process they may be less reliant on mediators offering evaluative or judge-like styles.

This article first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original are omitted in this blog posting). 

Wisely Choosing a Mediator: Mediator Impartiality

My last several posts have discussed factors a lawyer or party should consider in selecting a great mediator. Today, I'd like to talk about mediator impartiality.

I have discussed this topic, one of the core values of mediation, in a much lengthier law review article: Teaching the Ethical Values Governing Mediator Impartiality Using Short Lectures, Buzz Group Discussions, Video Clips, a Defining Features Matrix, Games, and an Exercise Based on Grievances Filed Against Florida Mediators, 11 Pepp. Disp. Resol. L. J. 309 (2011).  You should be able to download it here. 

Greg Firestone, a Florida mediator, spoke about mediator impartiality at the October 2003 conference of the Association for Conflict Resolution.  He suggests you think about these issues along two dimensions that create four quadrants on a grid.  One side of the grid are the terms “parties” and “outcome.”  On the other side of the grid are the terms “relationship” and “conduct.”  The resulting four quadrants are: “relationship-parties,”  “conduct-parties,” “relationship-outcome,” “conduct-outcome.”  In searching for a mediator, you want someone who can maintain impartiality in these four quadrants.  The leading cause of ethics grievances filed against mediators in Virginiaand Mainerelate to impartiality.  It is the second most frequently cited basis for grievance complaints in Florida, Georgia, and Minnesota.

Mediator's Bias Arising Because of the Relationship to the Parties

The mediator’s impartiality towards the parties is often discussed in terms of conflict of interests.  When choosing a mediator you need to learn if the mediator has any current or prior relationships with the parties or their counsel.  

Does she accept referral fees from lawyers who regularly use her in mediation, therefore consciously or unconsciously creating a bias in favor of the referring attorneys and their clients?  Does she get most of her business from one company or firm?  Can she remain impartial to the party who is not the repeat player in the referral system?  Does the mediator sit on a Board with one of the parties?  Share the role of a church trustee with the other party?  Represented one party in a prior legal matter? Exclude anyone that has a relationship you feel may bias the mediator towards the party with whom he or she has had a prior relationship.  

Mediators should error on the side of over-disclosure of conflicts of interest or potential conflicts of interest.  They should check for conflicts with the same care imposed on lawyers by legal ethics rules.    

Mediators must also avoid creating any conflicts of interest during the course of the mediation – for instance, by buying stock in the company owned by one of the parties.  

Finally, mediators should avoid creating an appearance of impropriety by representing parties as a member of their profession of origin (i.e, lawyer, therapist, or accountant) in the future, in the same or similar matter.  Most ethics codes either prevent future representation in the same or similar matter or they limit future representation until a reasonable period of time has lapsed since the mediation.  It is fair game for you to ask a mediator how he handles the future conflict of interest issues? 

         
Mediator's Bias Arising Because of the Conduct or Attributes of the Parties

Next, you need to consider whether the mediator can maintain, through his or her conduct, neutrality towards the parties when he or she has problems that arise from the conduct or attributes of the parties.  

Will the mediator become frustrated, disrespectful, or heavy-handed if he or she believes you or your client is uncooperative?  Does he hold any racial or cultural biases?  Can he work with people that express racial bias?  Does she think in traditional ways that may impose gender biases or reinforce gender-role expectations in the mediation?  Does anger make him uncomfortable in a way that he may cut off your client’s expression of it?  Does crying make the mediator uncomfortable in a way that he may suppress the expression of sadness, fear, vulnerability, regret and other emotions expressed in this way or other ways?   Can she work with borderlines, narcissists, sociopaths and other high conflict personalities without those parties pushing her buttons or manipulating her?  Does her conduct favor repeat players or parties who may be paying a larger portion of the fee.  

The mediator should be willing to withdraw from the mediation if the parties perceive she is no longer impartial towards each party.

Mediator's Bias Arising Because of his/her Relationship to the Desired Outcome

The next quadrant helps us think about the mediators relationship or bias in favor of a particular outcome even if it is a settlement at all costs.  

Does the mediator brag about a high settlement rate?  Will he work hard for his settlement rate even if it requires coercive interventions that disfavor one party?  Has the mediator succumbed to perceived pressure from referring courts to maintain a high settlement rate?   

Does he have a vested interest in the outcome because his fee is based on a percentage of the agreed settlement?   “Lawyers should decline to retain a mediator whose fee is based on a percentage of the ultimate settlement [where not precluded by the ethics code].  [I]t smacks of impropriety and at the very least, raises serious questions about the mediator’s ability to remain neutral.”  Does he unnecessarily prolong a mediation just to earn additional fees?  

Does she believe that all civil rights related mediations must result in an agreement consistent with Title VII law?   Can he mediate with impartiality as to the outcome in an air pollution case if his son suffers from severe asthma?  Can she mediate with impartiality an abortion clinic real estate boundary dispute if she opposes abortion?  These questions highlight the concern that a mediator will push a party towards a particular outcome because the mediator consciously or subconsciously prefers that outcome. 

Mediator's Bias Arising Out of his/her Conduct Affecting the Outcome

Finally, this last quadrant of the grid focuses on party self-determination and a mediator’s conduct that undermines it.  The mediator may lack skill in supporting party-self determination.  She may also not care very much about it or truly respect it as a core value of mediation.  Thus, he or she may use coercion, intimidation, or other heavy-handed tactics to get an agreement?    She may rely too much on her legal skills by offering legal advice.  He may add terms to the settlement agreement on which the parties have not agreed?

Conclusion

Choosing the mediator is the most important decision you will make on behalf of the client who plans to participate in mediation.  Make the choice wisely and with care.   

What factors do you consider important in the choice of a mediator?  I'd like to know. 

This article first appeared in the St. Louis Lawyer, April 2005, and was reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm (footnotes in the original are omitted in this posting).

Wisely Choosing a Mediator: Process Skills, Expertise, and More on Style and Approach

I want to continue my discussion of how best to choose a mediator.  I started the discussion here.  This posting will focus on a few more factors to consider.  

Mediator's Process Skills and Expertise

 Mediation skills do not come naturally to any of us.  Some people call mediation an art.  Some people call it a craft.  Mediators acquire their skills through hard work and hands-on experience.  Good mediators spend their spare time reading books about interest-based negotiation, mediation and conflict resolution.  We do pro bonowork to gain additional experience early in our mediation careers when no one will hire us.  So don’t be afraid to ask how many mediations the mediator has done and the nature of the disputes she has mediated.  You might even ask about her settlement rate.  But you should “avoid at any cost [a mediator] whose only goal is to achieve an agreement.” And “[b]e wary of a mediator who overstates the advantages of mediation.”

            Mediators learn listening, paraphrasing, reframing and astute questioning skills.  Our questions can be probing, but as non-threatening as possible.  Mediators learn techniques to facilitate communication between the parties.  We develop a firm understanding of the stages of mediation, but also demonstrate flexibility in handling the mediation agenda.  Mediators can explain the process clearly and effectively to the parties. 

            Mediators gain sensitivity to the needs of parties for equality, respect, security, face and safety.  We learn to spot and deal with high conflict personalities.  We understand the psychological barriers to negotiation.  And the really good mediators handle emotional expressions skillfully without cutting them off prematurely.  We know if, when and how to engage in joint sessions and private caucus with parties.  We know the rules of confidentiality.  We also know and adhere to the aspirational or ethical guidelines that apply to our practices and we practice consistently with the most rigorous set of ethical rules. 

Mediator's Legal and Substantive Experience

Some people believe that only attorney-mediators or retired judges serving as mediators should mediate litigation-related disputes.  These comments begin to frame one of the debates about the qualities of the most effective mediators.  Many parties assume that the mediator should have substantive expertise, with the ability to do very rigorous case evaluations or legal reality testing.  They argue that these mediators possess intimate experience with juries, know the judges in which the dispute is pending, and have personal knowledge of the legal issues and recent verdicts that may affect a party’s negotiating leverage.   Judges and well-respected lawyers may also provide the high status or authority parties seek.

If you seek this sort of expertise, then you are looking for a mediator who possesses great credibility and reliable analytical and evaluation skills.  You will probably want to ask the mediator what type of legal practice he or she has and how many years of experience the attorney has in that practice area.  How much trial experience does the attorney-mediator have?   How many mediations in the relevant subject-matter area has she done?  When the judge was on the bench, what was the nature of the caseload he handled?  Does the judge have a disposition and personality that is appropriate for the mediation context? Can he successfully shift from an adjudicator’s behavior to a mediator’s behavior?

Similarly, if the dispute involves a highly specialized or technical nature – like construction, environment, securities, computer technology, child custody, tax, or insurance coverage -- you may want to hire an engineer-mediator, biologist-mediator, broker-mediator, computer scientist-mediator, therapist-mediator, accountant-mediator, or claims manager-mediator.  You would ask that prospective mediator similar questions about his or her subject-matter expertise.   

One writer suggests that lawyers choose other lawyers and retired judges as mediators simply because it is their way of adapting an otherwise unfamiliar process to “look like something that is more familiar to them.”  Another commentator says: “Many advocates, especially lawyers, insist that subject-matter expertise is not only important but imperative in the mediation of their disputes.  This does not, however, explain why retired judges, who normally possess no such expertise are used by lawyers more often than other [attorney-mediators].”  However, if legal expertise were enough to carry the day in mediation, then the Microsoft mediation -- conducted by well-respected Judge Richard Posner, Chief Judge of the Seventh Circuit Court of Appeals -- should have been a great success.  Instead, that mediation is a textbook example of how the failure to master the process skills and apply a well-developed body of mediation and negotiation theory led to impasse on more than one occasion and the rejection of the deal by state attorney generals whom Posner had excluded from the process.

In jurisdictions, like Virginia, that prohibit a mediator from providing legal advice, allow the mediator to provide legal information only in highly constrained circumstances, and limit evaluations to three situations, the legal experience of the mediator is potentially irrelevant, a trap for the ethically careless mediator, and a risk to party self-determination.  The mediator, unlike an arbitrator, is not deciding the matter.  And real risks come with this highly evaluative style.  I will deal with that topic in a future article.   Another writer says: “An aggressive [presumably lawyerly] questioning style and a tendency to focus on fault and historical fact often limits a lawyer’s creative problem-solving ability and can aggravate positional behavior.”

Most mediators, including myself, will tell you that having good people skills, process expertise, and other qualities are far more important than knowledge of a particular area of law.  Even the author quoted above concedes:  “Mediation can also be successful even if a mediator is not well versed in the subject matter of a case.  In fact, a mediator who does not have subject-matter expertise but who offers an open mind could be more effective….A mediator who lacks subject matter expertise [] might provide the parties with a read on how a jury member—who most likely will not have subject matter expertise – would react to each party’s position.”  Many experts in the field, including myself, believe that non-lawyers bring backgrounds, skills and professional experience that may help the parties see the dispute in a new light.  Non-lawyers also may have better skills at handling the inter-personal relationship issues existing in the dispute and the emotions fueling the dispute.

As Hal Abramson says in his new book: “Just because someone is trained as an attorney or judge does not mean the person is qualified to serve as a problem-solving mediator.  A former judge, for instance, can successfully advance settlements by bringing to bear her vast experience in evaluating and deciding cases.  But, only a person formally trained in problem-solving mediation knows the nuanced structure of the mediation process and the refined techniques of mediators.”    But a short time later, Abramson concedes: “You are better off with a mediator who has some substantive understanding of the dispute.  However, you should unambiguously instruct the mediator to not give any substantive opinions, unless both sides specifically request the mediator to do so.”   He believes a mediator with some substantive knowledge can perhaps “hit the ground running,” better understand what is really at stake, and can more credibly communicate with the parties and their lawyers.  But Abramson cautions that a knowledgeable attorney-mediator may have extreme difficulty hiding his opinions and so may exhibit conduct in the mediation that undermines his neutrality or the parties’ perception of his neutrality.

If I were looking for a mediator, I would find someone with substantial process knowledge and skill, who had solid training and extensive hands-on experience before I would hire a less experienced attorney-mediator or retired judge-mediator.  In a perfect world, the mediator would have significant process and substantive expertise, and would know when to leave the substantive expertise out of the mediation.  This discussion should again highlight how selection of the mediator must consider the specific facts and circumstances of a particular dispute.

Mediator's Style or Approach

            In an earlier posting found here, I discussed the different mediator styles or approaches.  I won’t repeat that discussion here.  However, Woody Mosten has yet another tool for considering a mediator’s style or approach – the Mediator’s Abacus.  Envision a 12-wire abacus.  The “x’s” represent beads on the abacus wires indicating how a particular mediator might characterize himself or herself on the indicated approaches to mediation.  Thus, a lawyer-mediator is more likely to focus on the facts and law of the dispute rather than on the therapeutic, psychological, or emotions aspects of the dispute.  He may co-mediate about as often as he conducts solo mediations.  She will have a brief intake process with little documentation.  He may advise the parties to consult with lawyers as often as they like during the process, and he may ask them to have an attorney review any draft agreement before they sign it.  And, so on. 

Therapeutic_________________________________x_______Just facts and law

Co-Mediator__________________x_____________________Sole mediator

No intake process_________x__________________________Lengthy intake process

No intake documentation___x__________________________Lengthy documentation

No consulting lawyers________________________x_______Lawyers required

No lawyers at sessions________________x_______________Lawyers present

No solutions suggested____x___________________________Solutions recommended

Memorandum not binding___________________________x__Binding agreements

Multiple short meetings____________x___________________Long single sessions

Voluntary Participation____x___________________________Mandetory/court-ordered

Caucus_________________________________________x___All joint sessions

            Again, the style or approach of the mediator is an especially important factor to consider when choosing a mediator. 

This article first appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm.

Wisely Choosing a Mediator: Factors to Consider

Most states do not license or certify mediators.  They do not require a minimum level of training, continuing education, background checks, or character and fitness reviews.  In most states, a person who has lost his or her professional license in one area can nonetheless (and easily) open shop as a mediator.  Most states do not have standards of ethics that apply to all mediators and no grievance procedure allowing a client who believes something has gone terribly wrong in the mediation to report the wrongdoing.  Most states do not have the authority to sanction or otherwise prevent the activities of rogue mediators.

A few states have standards of ethics and some entry barriers to the profession consisting primarily of minimum training requirements.  In Missouri, a person can become a “Rule 17 qualified” mediator with less time spent in training than he or she spent watching TV the same week.  But even these ethics rules and modest training requirements typically only apply to mediators who seek to be listed on mediator rosters in court-connected mediation programs. 

In other words, just about anyone can hang up a shingle advertising his or her ability to conduct private mediations.   For lawyers and clients and other mediation parties, this information should tell you that the “buyer [must] beware.”  You need to take the time to choose your mediator wisely and with care.  Mediators vary greatly in skill, training, experience, and temperament.  Parties choosing a mediator must approach the task on a case-by-case basis, considering the facts, emotions, relationships, and law of the dispute as they may affect the attributes you need in mediator.

A good mediator can enhance the likelihood the parties will reach agreement.  A bad mediator will impede the settlement process and may undermine the parties’ relationship, as well as their confidence in the mediation process as a means for resolving future disputes.  Bad mediators will cost the parties additional time and money. 

Several years ago, I read all (yes, all) the advisory ethics opinions and grievance filings involving mediators issued by the ethics panels in Florida.  It brought home to me that a lot of sloppy mediation occurs that affects the core values of mediation: impartiality of the mediator, confidentiality of mediation communications, and party self-determination.

Factors to Consider in Choosing a Mediator

The Judicial Council of Alaska developed an easily accessed and well-informed guide for choosing a mediator.   It describes (1) the qualifications a mediator needs; (2) what makes a mediator competent; (3) the five steps it recommends in choosing a mediator and (4) additional resources.  

The Mediation Council of Illinois also developed a set of ten interview questions parties can pose to prospective mediators.  The questions ask about the mediator’s training -- both quantity and quality, whether he or she has had  any hands on mentoring, supervision or internship training, whether the mediator continues to “sharpen the saw” by attending continuing education programs and mediation-related conferences, and whether she consults regularly with other, more experienced mediators.  The questions then turn to the mediator’s level of experience:  How many mediations has the mediator done, overall and in the particular area of practice that relates to the dispute?   What percentage of the mediator’s professional life is devoted to mediation?  

It then turns to the mediator’s style or approach, which I discussed here.  Next, the interview considers the honesty, integrity and professionalism of the mediator by asking about any ethics complaints filed against him or her, whether the mediator belongs to mediation-related organizations like the Association for Conflict Resolution, the Association of Attorney-Mediators, or state mediator organizations, and whether the mediator provides pro bono mediation services as a community service.   It asks for roster listings, which reflect some measure of confidence expressed by third-parties in the mediator.  It also asks whether the mediator carries liability insurance for his or her mediation practice.

These two easily accessed tools provide a place to start your investigation.  And good mediators will not hesitate to respond to any question about his or her professional background.  But I recommend an even more thorough analysis.

Personal Qualities of a Good Mediator

My last posting, here, called Qualities of a Good Mediator and the Lessons New Mediators Learn, surveyed the thoughts of a number of conflict resolution experts about the personal qualities of effective mediators.  

Mediator's Availability and Affordability

            

Often, the well-respected mediators are booked months in advance.  Accordingly, the parties must determine if they can endure the wait.  If not, a rising star with a more open calendar will be the better choice.

Parties often pursue mediation because it tends to be less costly than litigation.   Parties can choose from no-cost or low-cost community mediation projects.  Or, they may engage private mediators who will charge $100 to $300 per hour.  Some mediators charge $1,500 to $3,000 per day, or charge according to the number of parties, the complexity of the case, or the money demand made in the complaint. They may charge cancellation fees.  They may charge pre-mediation fees related to intake or background phone calls or the review of papers or briefs.   

Mediators should not hesitate to discuss fee issues.  Most ethics codes, whether aspirational or mandatory, require the mediator to disclose all fees and costs in the mediation agreement, a retention letter, or the mediator’s opening statement. Most ethics codes also preclude contingency fees and referral fees because of their potential affect on mediator impartiality.  These codes may also instruct mediators to return any unused fees.

Mediator's Certification or Roster Status

Most courts will not allow mediators to mediate cases pending in the courts without some assurance the mediators meet basic training requirements.  Whether a mediator is certified, qualified, or rostered may offer some assurance that he or she has at least some minimal level of training.  

In Virginia, where I now live, entry level mediators (essentially small claims mediators) must have 20 hours of training, including two hours of ethics training.  They must also take a four-hour course on the Virginia judicial system.  Persons wanting to do more complex court-connected civil mediations need an additional 20 hours of training.  Family dispute mediators must have 32 additional hours of training in family systems, the social, emotional and psychological aspects of custody and visitation issues, an understanding of the grounds for divorce, parenting issues, support issues, property issues, debt and bankruptcy issues, tax issues, and the use of experts in mediation.  They must also take an 8-hour course giving them some expertise in screening for and addressing domestic abuse.  Virginiare-certifies mediators every two years after they show additional experience and training.  The court also requires observations and co-mediations with a certified mentor as part of the training program.  The requirements are summarized here.

In contrast, Missouri Supreme Court Rule 17.04 requires only 16 hours of basic training for mediators.  By comparison, I now have over 3000 hours of training.

When choosing a mediator, you should ask for the mediator’s list of training programs.  Most well-organized mediators keep an updated list of all the training programs they have attended.  You should then attempt to assess the quality of the trainers.   Training quality depends on the hands-on experiences offered the trainees and the quality of the feedback provided by the trainers.  Hal Abramson says:  “Information on the quality of training programs can be difficult to acquire by the newcomer although the information is widely known to dispute resolution professionals.  You should ask around.”  The Association for Conflict Resolution lists approved family mediation training programs by provider and state.  To be listed, the program must provide fifteen training outcomes.

You may also want to evaluate the quality of the mediator’s other professional training as a lawyer, therapist or accountant, for instance.  Does he or she have any specialized degrees.

And finally, does the mediator, in turn, train other mediators?  Is he or she well-recognized in the field for his or her training work?

I'll discuss additional factors in the selection process in my next posting. 

This article originally appeared in the St. Louis Lawyer, April 2005, reprinted in The Insurance Receiver, Summer 2005, at 11 and at http://mediate.com/articles/young16.cfm (footnotes in original are omitted in this posting). 

Qualities of a Good Mediator

Several years ago, the University of Missouri-Columbia School of Law held its annual training for new mediators.   I served as a role-play coach and evaluator.  Those of us who have been through that training call it the “baby” mediation training.  Its principle purpose, in my mind, is to show the participants how little they know, even after they complete the training, and the significant challenges a mediator faces.  Mediation is not for sissies.

After three days of training, many of this year’s participants began to realize that mediation is hard work.  Several trainees realized that good mediation requires rough and tough litigators to move out of their comfort zones.  Good mediation requires a different set of skills from those used regularly by trial lawyers.

Missouri Supreme Court Rule 17 requires new mediators to have at least sixteen hours of “appropriate” training.  These requirements are quite modest.  Virginia, my new home, requires twenty hours of training.  New Virginia mediators must also observe two mediated cases and co-mediate three cases for at least a total of five hours.  The good mediators I know have hundreds of hours of training.  One of the best mediators in St. Louishas over 500 hours of training.  

Good mediators attend the annual conferences sponsored by the Association for Conflict Resolution and the ABA Section on Dispute Resolution, where mediators more deeply explore the theories underlying approaches to mediation, share experiences with other mediators, and buy the latest books on mediation and conflict theory.  Good mediators also belong to local professional organizations like the Association of Missouri Mediators, the Association of Attorney-Mediators, or the Virginia Mediation Network.  

In The Making of a Mediator: Developing Artistry in Practice, Lang and Taylor identify the following hallmarks of artistry in a mediation practice:  (1) Attending to detail, staying responsive in the moment, and observing nuances in the parties’ behavior, tone, and voice; (2) remaining curious and open to new perspectives on the stories the parties tell; (3) exploring all options and not being bound by limiting assumptions or simplistic characterizations of one party about himself or about the other party; (4) developing and testing formulations of the conflict and abandoning any formulations that are not accurate or stall the process; (5)  showing resilience and responding to the events and circumstances of the moment without losing sight of the goals of the process; and (6) showing patience, vision, and a clear sense of direction.  Id. at 24-36.   

In his book, Mediation Career Guide – A Strategic Approach to Building a Successful Practice, Woody Mosten identifies the roles a mediator plays as including: host, teacher, emotional counselor, referee, facilitator, idea generator, reality tester, negotiation coach, conflict manager and recording secretary.  Id. at 35.   He says that mediators are good listeners, effective communicators, patient, tolerant, neutral, empathetic, persistent, trustworthy, flexible, creative, positive, optimistic, and they can handle conflict.  Id. at 23. 

Walter Maggiola, in Techniques of Mediation, provides a list of the characteristics good mediators possess:

º           The patience of Job,

º           The sincerity and bulldog characteristics of the English and the wit of the Irish,

º           The physical endurance of the marathon runner,

º           The broken-field dodging abilities of a halfback,

º           The guile of Machiavelli,

º           The personality-probing skills of a good psychiatrist,

º           The confidence-retaining characteristics of a mute,

º           The hide of a rhinoceros,

º           The wisdom of Solomon,

º           Demonstrated integrity and impartiality,

º           Fundamental belief in human values and potential, tempered by the ability to assess personal    weaknesses as well as strengths,

º           Hard-nosed ability to analyze what is available in contrast to what might be desirable, [and]

º           Sufficient personal drive and ego, qualified by the willingness to be self-effacing.

Quoted in Mediation Career Guide at 31. 

So my advice to the latest crop of baby mediators is this:  Get more training.   Read the books on the list of recommended readings in your training manual, then order more books on mediation and negotiation from the leading provider – Jossey-Bass Publishers.   Read the articles at www.mediate.com.  Look for any opportunity to talk with more experienced mediators.  Look for anyopportunity to observe an experienced mediator.  Join the leading professional organizations so you receive their publications.  Stay humble.  I guarantee that the good mediators feel incompetent most of the time, but they are so drawn to the promise of mediation that they will do whatever it takes to assemble the skills required to feel less incompetent.   Congratulations.  And I wish you the best.

What do you think are the qualities of a great mediator?  I'd like to hear your comments. 

This article first appeared in ST. LOUIS LAWYER, August 7, 2002, at 10A (footnotes in original are omitted in this posting).