It would seem that if disputing parties want to resolve outstanding issues using mediation that it should be fairly easy to accomplish. One problem, however, is that most of us carry assumptions that can easily derail progress during the sessions. Some of these assumptions are so basic that we don’t really consider them as factors that impact the process. Here are a few that I have found problematic:

1.) “Tell me what happened.” — For many people that request really is, “Tell me what happened in the way that I would tell a story.” And this typically means telling the story in chronological, cause-and-effect order. In other words, tell me what happened first and then what happened as a consequence of that. Actually, people usually tell their stories in order of importance, that is, they will tell you the most importance thing to them first, then other events of lesser importance. Imagine two people together: One wants to talk about the most important thing that happened first. The other person discounts that by asking to hear what things occured before that. The first person might feel that the second person doesn’t understand or appreciate the importance of the event that matters to them.

2.) “Let’s set emotions aside and discuss this rationally.” — The person to whom that is said might hear “Your emotions are not valid, nor important, and you are somehow less skilled than I am because I can control my emotions.” For most of us, emotions are what the conflict is about and not to express and deal with them discounts their importance. Such a person cannot be effective in dispute resolution while being asked to ignore their emotions. because those feelings are most relevant to them.

3.) “Let’s talk this through and reach an agreement.” — Joint, oral, on-the-spot problem solving is a skill. Some are comfortable doing just that. Others are less so and might hear, “You’re going to have to come up with an agreement with me on the spot without any help.” Someone more accustomed to reaching consensus by discussing with friends, family or legal council will hear that they are being forced to act immediately and independently—something they may not be experienced or comfortable doing alone.

These three are just some examples of the assumptions we can make in attempting dispute resolution that can negatively influence the most well-intended attempts. When discussions reach difficulties, I recommend stopping and considering just what are the basic assumptions that are being made about the process itself.

Unless the process works for all, it won’t work at all.

This week a former employee asked me about a mediator his family had contracted to conduct an estate mediation. He showed me the mediator’s terms of service letter. To say the least, I was upset to see it. Not only was the quoted rate on the high side, the entire letter went into detail about payment, cancellation policy, and late fees. There was nothing about mediation nor about the mediator. 

While I am a strong advocate of mediation, I need to also help consumers understand how to find a mediator they can be comfortable with. My former employee had three questions: 

The first question was if the mediator should be an attorney. Some of the very best I know are NOT attorneys, but also some of the very best mediators I know ARE. The roles of attorneys and mediators are separate and distinct. It is unethical for an attorney acting as mediator to provide legal advice or counsel to anyone involved in the process. 

The second question was if mediators are licensed. There is no national training requirements nor credentialing for mediators. Many state and federal courts have rosters of approved mediators for certain court mediation programs, but there are no established qualifications to obtain such a role. 

The final question was how to evaluate a mediator’s suitability? My guideline is the number of mediations the individual has conducted as a mediator or co-mediator including, of course, volunteer mediations. All things considered, I put the most weight on experience. I cautioned him to avoid mediators who advertise a “success rate” or the percentage of their mediations resulted in agreements. My concern is how much was that mediator subtly or openly forcing a settlement in order to maintain a high settlement rate. Ethically a mediator cannot promise any positive outcomes. 

To help consumers evaluate a mediator, I suggest the following questions: 

1. Where did you receive your mediation training?

2. How many mediations have you done?

3. How many mediations have you done in [the area of your dispute, for example, disagreements over real estate escrow, etc.]?

4. What style of mediation do you use?

5. Do you have any known prior connection, relationship or other conflict of interest issues with any of the parties in this dispute?

6. Do you work with an attorney should any legal documents be required from this mediation? If you do, may we use another attorney?

7. Do you conduct mediations face-to-face, by telephone or internet?

8. Are you for-profit or non-profit? What do you charge? Do you do pro bono and sliding scale mediations?

Having satisfactory answers to such questions will hopefully help ensure a smooth and successful outcome for all.