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.

Occassionally I’m asked about the effect of the gender of the mediator who is conducting a session. As you might imagine, this is not a simple question. Here are some factors to consider:

First, what happens in a mediation is not solely a consequence of the mediator and their behavior. One important factor is the expectations, perceptions and biases of the participants. A participant may, for example, behave differently with a female mediator than with a male one.

Second, mediation is about behaviors. It is not reasonable to assume that all women mediators behave differently than all male mediators all the time. So, at best, the question is whether there are behaviors more commonly associated with women mediators than with males?

Another observation that is relevant is participation. Over decades of teaching volunteers to be mediators in community mediation and Small Claims Court settings, the vast majority of volunteers have been women. On the other hand, on the international peace making processes, women make up only 2% of mediators in major peace processes. The 98% of males are generally high level personalities who work independently, rather than part of a team. Women are, to be sure, overwhelming involved in informal peacemaking. United Nations Security Council Resolution 1325 calls for an increase in women’s participation in peace processes at all levels.

What are the behaviors more commonly associated with women mediators in addition to being more comfortable working as part of a team rather than independently? A class study by David Maxwell analyzed 724 mediations by 24 female and 24 male mediators. His conclusions was that both genders were equally effective at reaching an initial settlement, but that female mediations were significantly more effective in negotiating binding settlements.

What might explain Maxwell’s findings? I can only suggest my personal observation of working with volunteer mediators. Most males focus more on reaching a solution to the issue disputing parties present. More of the female mediators, while helping parties reach a solution to the issue, also make it possible for the parties to discuss their relationship to the matter at hand. When any such relationship issues are addressed it is more likely that the resolution be a lasting one.

Again, to be clear, I am describing a set of behaviors which either women or men may employ. It just might be that women are more comfortable helping disputing parties address relationship issues, but that doesn’t mean that some male mediators aren’t equally competent at doing that as well.