Mediators are experts in many things: listening, easing tensions, reconciliation, and communication. The mediator must be a paragon of objectivity and impartiality. While he or she may ultimately have an opinion with regard to the merits of each side’s case, the mediator must approach those opinions with the utmost objectivity and recognise that both sides of the matter have merit for the individuals involved.
First and foremost, mediators are good listeners. It is our primary role to listen to each side and pick out the key considerations within each argument. We must take extensive notes to distil often emotional and subjective opinions and reduce them to essential information. Yet, we must not ignore the emotion that operates on both sides. Instead, we must be able to empathise with each party and listen well to what they have to say. Oftentimes, listening allows us to find alternative resolutions to the matter. For instance, we often hear plaintiffs in cases say that they want some acknowledgement on behalf of the defendant that there was some form of culpability on their part. A mediator cannot undervalue the effect of a simple apology letter from a defendant. When financial numbers deadlock, negotiating non-financial terms can mean the difference between successful and unsuccessful mediation. Compensating for culpability can take a number of forms including responsibility for costs. A good mediator must be prepared to think outside the box.
Secondly, mediators are often responsible for easing tensions between the parties. A mediation session, even when unsuccessful, can often operate to clear the air between two sides and reduce the emotional charge involved in the issue. There is much to be said for the feeling of being heard and understood. Many an ‘unsuccessful’ mediation day has been followed by several days or weeks of continued negotiation talks that ultimately end in settlement after the fact. This is because the mediator has done an excellent job of easing the tension between the parties and re-engaged them in communicating at a more appropriate and conciliatory level. Mediators facilitate logical and rational thought processes amongst the parties and bring them down to a level playing field. Mediators also encourage a realistic view of the case at hand.
Mediators are masters of reconciliation. We push each side to their limits in an effort to resolve often complex legal issues. Whilst mediators spend a majority of their time listening and negotiating, there often comes a time to act on experience and opinion to keep the parties moving toward a mutually advantageous settlement. As mediators, we have never encountered an iron-clad case: every case has holes and weaknesses that decrease a party’s chances of winning in court. When negotiations stall, it is the mediator’s role to remind each side of the weaknesses of their case. This is why it is critical to employ a mediator who has extensive legal and/or subject matter experience in the issue at hand. It is also important to have a mediator who encourages the parties to think outside the box in order to get the job done. A good mediator recognises that the bottom line is not always about money. It is often about pride and common sense. A mediator must always keep the pride of each party in mind and negotiate a settlement that allows each side to leave with their pride intact.
