Sunday, June 9, 2013

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 bono work 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.

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