When trying to select the right mediator for your dispute, it can be difficult to decide. What should you look for? How can you determine the mediator’s reputation and history of success? Often, a good mediation result lies in the personal qualities of the mediator. Whilst clients must be prepared to have the right mindset for mediation, a good mediator can often drive the parties together to come to a mutually agreeable solution.
Knowledge of the area of your dispute
The mediator you are looking for will normally have knowledge and expertise in the area in which your case fits. You are unlikely to choose a family expert for a commercial property dispute unless you had a particularly strong personal introduction for that person, or if you decided for reasons particular to your case that you wanted to engage someone with their particular skill set, so they could bring a fresh approach. Usually, however, the more experience a mediator has in the issue at hand, the more it is likely that he or she will understand not only the technicalities involved, but the likely issues to arise and the chances of success (or failure!) each side has at trial.
Listening Skills
Listening skills are just as important in mediation as knowledge and experience. No matter how knowledgeable a mediator is, if he or she does not listen and understand the viewpoints of each side, it is difficult to move the parties together. The mediator must also be able to read between the lines and observe not only the parties’ viewpoints, but also the mood and the motivations that underlie those opinions and feelings.
Neutrality
While the mediator must demonstrate empathy for both sides, he or she must do so while exhibiting the utmost neutrality in the matter. If solicitors or parties feel that the mediator has even a modicum of bias, the matter will not settle. Although mediators will have opinions on the merits of the case, they must know if and when to reveal those opinions, and just how much to reveal. Part of a mediator’s job is to gently point out holes in each side’s case, but they must do so very cautiously and in a non-judgemental manner.
Trust
Without trust, a mediator is unable to function. Part of the trust a mediator is given lies in their ability to remain neutral and observe the rules of confidentiality. In addition, a mediator gains trust from the clients he or she serves by being honest. A mediator must be able to dissect each parties arguments and find the strengths and weaknesses in the case as a whole. The only way to do this honestly is to avoid regurgitating futile or weak arguments and by not trying to play them up. A mediator who goes back to the other side with weak arguments loses credibility and is not dealing honestly with the parties.
Tenacity
A good mediator is tenacious in the pursuit of a settlement. That doesn’t mean a mediator should be willing to use dishonest or marginal tactics just to maintain a good settlement record. A mediator must always keep in mind that a mediation settlement is voluntary, and strong-arming the parties seldom works to achieve a settlement. However, a good mediator knows that even when things look like they are ready to stall, there are tools available to keep the parties moving forward. One of the benefits of a mediation settlement is that the parties can get creative in their settlement techniques. For instance, in employment disputes, sometimes a letter of recommendation or a good reference is worth more than cold, hard pounds to a former employee. Tenacity and creativity can often win the day in mediation.
