MY MEDIATOR DIDN’T KNOW ANYTHING

A recent opinion piece written by an attorney on an internet legal affairs site describes two mediations—one successful and one unsuccessful.

Attempting to determine what accounted for the unsuccessful mediation, the author suggests that the difference had nothing to do with the legal strengths and weaknesses of the parties’ positions, but everything to do with the negotiation strategies of the parties’ counsels and the abilities of the mediator.

With due respect to the attorney author, I look at the situation he describes differently.

The author contends that the initial reason the mediation failed was that one party’s counsel was unwilling to consider reasonable counteroffers. I think there are two alternative explanations. First, the mediator may not have helped the party understand the consequences for not settling. Known as, “worst alternative to a negotiated agreement,” is a mediator tool which helps parties in mediation stop and consider the options other than reaching an agreement. All too frequently in the intensity of a mediation parties lose sight of the consequences of not settling. The mediator can help parties put this back into perspective. Second, a mediator does not force people to settle. Mediation is based on self-determination and if a party, or both parties, are not motivated to settle, knowing the consequences of not settling, then that is likely the outcome. Mediators do not consider that as failed result.  While the parties did not settle in the mediation they had the opportunity to hear more of each other’s issues, demands and interests. They may, for example, decide to return to mediation at a later time.

The author also contends that in what he refers to as the failed mediation, the mediator was not experienced in the subject matter of the dispute. Again, I have an alternative perspective. In fact, I often say it is an advantage to not have knowledge of the subject matter of the dispute. The uninformed mediator must ask more questions of the disputing parties. Not only is the mediator hearing the answer, the parties themselves are hearing each other speak. And, they often learn that they were operating from a different set of “facts.” In other words, the obvious is not to assume that disputing parties each understand each other. And, in my experience, one of the most talented and successful mediators I ever worked with often feigned ignorance of the subject matter. She would ask questions like, “What exactly does that mean?” She was actually an expert in the subject and knew the answer but wanted the disputing parties to share information. She was very successful using this tactic.

So, I would say if the disputing parties said their mediator wasn’t well informed, that may have actually witness a very successful mediator who helped them speak to one another and find a path to resolution, whether they realized it or not.

The skill of the true artist often looks easy to the unskilled.