Malone & Nelson
The Roles of a Mediator
I often hear lawyers talking about mediators and their different styles. These discussions are puzzling to me.
While everyone’s personality and experiences are different, and they may handle mediations a little differently from a process standpoint, a good mediator should assume many different roles during the course of a mediation rather than having a one-size-fits-all style.
Role #1: The Shuttle Diplomat
An important role for the mediator is, unfortunately, the one that many mediators never vary from – the shuttle diplomat. In this role, a mediator allows the parties to negotiate through a neutral third-party, thus alleviating many of the common barriers to successful and effective face-to-face negotiations. Emotions can often get in the way of successful negotiations and so can differing (or often similar) personalities. The mediator, as a shuttle diplomat, is a facilitator and should be able to soften the edges of difficult messages and encourage the negotiations to continue. This shuttle diplomacy also allows the parties to relax a little in their caucuses, so they can focus on the substantive issues and their negotiation strategy.
Of course, the mediator should not simply be a potted plant in this role. By skillfully asking clarifying questions and actively listening to each side as they communicate their offer, a mediator can help shape a productive offer and help avoid unnecessary flareups which could cause delay or, worse yet, end the negotiations.
Role #2: The Good Listener
One of the most important and overlooked roles of a mediator is to be a good listener. Regardless of the type of case, everyone wants to be heard. It is probably obvious in a case filled with emotional facts or claims, such as a divorce, child support and custody issues, personal injury claims, or wrongful death. But we are kidding ourselves if we don’t think emotions come into play in other cases, such as business disputes.
People of every sort in every different type of case want to tell and share their “side,” their arguments, their experience, and their point of view. Mediation provides them that opportunity without going to trial, where they think they want to share their story but where we all know they are likely to be disappointed by the experience. Taking the time to listen is important for the mediator, not just to appease whomever wants to be heard, but to get a good grasp of what may be motivating a position (and therefore provide an opportunity for resolution) and to build credibility, which is essential for the other role that the mediator will play.
Role #3: The Outside Perspective
Mediators can provide real value in their evaluative role. At the right time, a mediator should be able to give the parties invaluable informed opinions on evidentiary matters, trial strategies, and case value. The mediator’s ability to effectively give this feedback depends on his credibility. Part of that credibility is earned at the mediation, as discussed above, but it also comes from knowledge and experience. I’ve heard stories about other mediators who jump the gun on this role or who fail to use it properly. It’s important for a mediator to allow parties the opportunity to exercise their negotiation strategy without interjecting their opinions prematurely – when they aren’t wanted or needed. And when they are, it must be done thoughtfully and artfully.