As the popularity of mediation increases, it becomes increasingly important for mediation advocates to know what they are getting into. No single mediator or mediation session is the same as another. The flexibility of mediation is one of its strengths because for every dispute, there will be a variety of mediation alternatives. The only uniformity is the certainty that a skilled mediator will produce a settlement. It is incumbent upon the mediation advocate to recognize the mediation alternatives and to determine the mediation service best suited to the client’s needs. Mediation can produce the best opportunity for settlement when the mediation advocate is an educated consumer and selects the mediator best suited for the client’s dispute. Mediators have different styles and employ different techniques. Some mediators are more directive than others and some can be forceful in their recommendations. Other mediators are more facilitative and take their lead from the parties and their advocates. Studies confirm that there is no right or wrong way to mediate a dispute. The mediation advocate is in the driver’s seat and should select a mediator with the skill, experience and technique best suited for the parties’ dispute.
In June 2017, the ABA Dispute Resolution Section published a report of its survey of mediators and their techniques to determine whether there was clear winner. (“Report of the Task Force on Research on Mediator Techniques”, ABA Section of Dispute Resolution, June 12, 2017) The report concluded that there was no single mediation technique that produced a greater rate of success than others. The survey focused on the individual mediators and showed that the following characteristics have a greater potential for positive effects:
- When the mediator elicits suggestions from the parties;
- When the mediator acknowledges parties’ emotions, relationships and sources of conflict;
- When the mediator works to build trust and rapport, and express empathy with or praise of the parties, and
- When the mediator uses the pre-meditation caucus to establish trust.
This approach to mediation is consistent with the well ingrained principle of self-determination. As a facilitator, the mediator should establish an environment where it’s easier for the parties to resolve their own dispute.
In my practice, I find that my ex parte pre-mediation discussions with each party and their advocate can engender valuable trust and encourage self-expression. This direct dialogue allows me to introduce myself and to confirm my interest in their ideas and goals. There will come a time during the mediation when the parties and their counsel inevitably turn to the mediator for guidance, trusting the bond they established in their rapport with the mediator. I find this opportunity very useful in guiding the parties to a resolution.
Mediation advocates should understand their clients’ needs and select the mediator who will best serve those needs. Just like the mediation process, no one mediator is like any other.