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April 28, 2006

We need a mediator who…

~ written by Harold Paddock

There is a lot of scholarly and practical discussion about how to select a mediator and what particular styles to seek in a neutral. Here are my observations on this topic and its misconceptions.

The three mediator styles that currently stand out are: facilitative, where the mediator focuses just on process and lets the parties find their own resolution; evaluative, where the mediator gives the parties opinions about the merits of their cases and its ultimate value; and transformative, where the mediator helps the parties change their thinking and perceptions about themselves and each other. This dichotomy (or trichotomy) overstates the styles' differences and makes the boundaries seem rigid when they are not.

A good mediator practices what I call F.E.E.L. mediation, which stands for "Facilitate Early, Evaluate Later." A top-flight mediator will blend and change styles as the process progresses, always thinking on his feet and adjusting to the needs of the situation. If the parties change their attitudes along the way, so much the better.

I think when one side says about selection "We need a mediator who can crack some heads." They are really saying "My side is being perfectly reasonable. It's those morons on the other side who need to be whipped into shape about their case." Such an attitude is overly simplistic and risks getting a hard-nosed neutral who will only do a closet arbitration and strong-arm the parties. It's better to select an experienced mediator with a broad range of skills and experience and style flexibility.

Attorneys also mistakenly assume that a mediator is using the same approach in both caucus rooms. It is not automatic that a mediator will use only an evaluative or facilitative style while meeting privately with each side. Different people need different assistance in getting their disputes resolved. One party may need a strong "dose of reality" while the other requires more diplomacy.     

Another selection problem is assuming that an approach used in a prior mediation is the mediator's standard process. Like people, each dispute is unique. What works in one mediation may not work in the next. It is a significant error to think every mediation is an assembly line process with a rigid and repetitive format. You should select a mediator you trust to adjust to the unique characteristics of the parties, attorneys and facts.

One good way to gather information about a mediator's style is to ask other attorneys in the local bar, but keep in mind that your case may have different or special requirements. You can also ask the mediator. Call and discuss the mediator's experience, credentials and views on style directly with him or her. You will probably get a better picture straight from the mediator than guessing what someone else means by "sort of facilitative" or "moderately evaluative."

Ultimately, you should say "We need a mediator to help the parties settle their dispute with patience, professionalism and flexibility, regardless of style."

harold@settlementweek.com