Mediation Mind Shifts Series: Part 2
Purposeful Preparation: The 10 Essential Mediator Skills
By: Harold Coleman, Jr., Esq., CCA, Senior Vice President, AAA-ICDR®; Executive Director/Mediator, AAA Mediation.org®
Mediation Mind Shifts are the critical, incremental shifts in thinking that must occur to move people embroiled in conflict from entrenched, diametrically opposed positions at the outset of mediation toward the goal of resolution at the end.
These shifts transpire in the parties’ perspectives on the people involved, on the law applied, on the “facts” interpreted, on the risks assessed—and on the very possibilities presented through mediated problem-solving and settlement negotiations.
This post addresses how mediators (and counsel too, for that matter) will develop and the technical skill sets critical to the delivery of an effective mediation process and satisfying outcomes.
Benjamin Franklin opined, “If you fail to plan, you are planning to fail.” In this vein, substantive mediation preparation is a must. In fact, it is a process imperative. It is the sine qua non required to “set the stage” for effective mediation.
“Purposeful Preparation” examines the most critical skill sets that mediators and counsel must acquire and deliver with mastery if they are to influence an efficacious process and satisfying, mutually acceptable outcomes for all participants.
Indeed, substantive preparation, as with all mediation process phases, should be purposeful, i.e., executed with intentionality, strategy, and consistency. Anything less potentially subjects the process to party dissatisfaction or, worse still, complete failure.
Here are the 10 Essential Mediator Skills:
- Substantive preparation;
- Customizing and managing the process;
- Information gathering and investigation;
- Managing tensions and emotions;
- Empathizing and trust building;
- Creativity and problem solving;
- Critical thinking and analysis;
- Generating agreements;
- Presentation and persuasion; and
- Persistence.
Let’s do a deeper dive into what these critical skill sets entail and why they’re essential to mediation “mission success.”
Substantive Preparation
With the mediator’s leadership, coaching, and care, participants will prepare for mediation not only on the substantive aspects of the dispute in question but emotionally and attitudinally as well (see Part 1 of this series for further explanation). This is at the very core of what it means to “set the stage for effective mediation.”
Customizing and Managing the Process
This entails a mediator’s development, with party and counsel input, of an overall process strategy and the efficient management of that process.
Mediators must remember that the parties self-determine both mediation process and outcome. Simply put, it is the parties, not the mediator and not counsel, who own the process and decision-making it entails. After all, the problem itself belongs to the parties, and so does its solution and the process leading to it. Mediators are facilitators, and counsel are agents to the parties’ process. Ethical mediators understand these crucial limitations on roles and do their best to honor them, both in letter and spirit.
Information Gathering and Investigation
Seasoned mediators are good interviewers. They seek, identify, and prioritize information pertinent to the dispute from the stakeholders.
They also are diligent in facilitating meaningful information exchanges between and among parties based on what each has expressed (perhaps privately) is critical to them. This could help lead to parties’ understanding the opposing positions better and enabling them to begin preparations for a productive settlement negotiation.
Managing Tensions and Emotions
Mediators must be adept at coping with the emotional dimension of mediation. They must manage interpersonal conflicts with parties, counsel, and others and create an atmosphere conducive to constructive expression of emotions.
Lawyer-mediators historically experience discomfort and a genuine aversion to the emotional dimension of mediation. Recent training that focuses, however, on the neuroscience and other “soft skills” required for effective mediation seems to be increasing the comfort level of mediators in managing tensions and emotions.
Mediators and counsel would do well to “expect the unexpected” and “become comfortable with the uncomfortable” to reduce tensions, wield maximum influence, and lend a helpful guiding hand to mediated settlement discussions.
Empathizing and Trust Building
Empathy is a skill that expresses awareness of the needs and concerns of others, either verbally or nonverbally. It requires deep listening, testing for understanding of what’s been conveyed, summarizing in one’s own words, and responding thoughtfully and sensitively.
Mediators and counsel who rush the process by seeking to get to the problem-solving segment of mediation too quickly miss the essence of what many parties need in and from the process—a neutral and calming voice that will listen, really listen to a party’s story and what’s concerning them.
Adroit mediators “listen with their heads and their hearts”; in so doing, they build rapport and trust with parties because they exude empathy, largely through deep listening.
Psychologist/lawyer/mediator Stephen Sulmeyer insightfully articulated: “In every contentious dispute, you in effect have two cases: a legal case and an emotional case. Always address the emotional case first!” Why? Because, as Sulmeyer finds, the legal case is putative and superficial, whereas the emotional case is heartfelt and real. The legal case requires a transactional approach, whereas the emotional case requires a relational one. You cannot resolve emotional needs with purely transactional approaches.
Circumspect mediators will recognize that parties anchored in negative emotions simply cannot engage the rational center of the brain while the emotional center is on overdrive. Rather, they realize that they first must diffuse the negative emotions driving continued impasse by skillful empathizing and building trust.
Creativity and Problem Solving
This is a mediator’s effectiveness at pursuing--preferably with full engagement of the participants--collaborative (i.e., genuine “co-laboring”) solutions by conceptualizing and generating unique ideas, options, and proposals that are realistic, achievable, and consistent with party-expressed needs and interests.
Here, mediator subject-matter expertise can avail much. In fact, lawyer-mediators often are selected in major part based on their subject expertise.
As previously cautioned, however, insightful mediators will assess whether and when parties are in the appropriate emotional state to rationally problem solve, weigh options, and ultimately reach settlement decision-making.
Critical Thinking and Analysis
This stage represents the mediator’s shift from the more facilitative approach to an evaluative one, which is where critical thinking and analysis typically come to bear in larger measure.
At this stage, the mediator demonstrates acumen with assessing strengths and weaknesses; asking relevant and insightful questions; fostering clarity; probing substantive issues and risk awareness; connecting settlement options or proposals to stated interests; and providing helpful insight through intuitive reasoning born of experience.
When asked whether a mediator really ever can ethically (and properly) opine on the substantive aspects of a dispute, my response is straightforward: It’s not so much the “what,” it’s the how and the when of the “evaluation.” Skillful mediators first urge the parties to do the heavy lifting, before they weigh in with their own views.
To do otherwise could create the misperception often prevalent in the legal profession that the mediator is responsible for “settling this.” In substance and in truth, mediators do not and cannot ethically “settle” anything; indeed, parties settle their disputes, not mediators!
Generating Agreements
Here, the mediator will work with parties’ individual decision-making styles, beliefs, perceptions, factual sensitivity, emotions, and core interests to help them arrive at a decision of their own making.
Adept mediators do not “strong sell” settlement, not should they have to. Mediator consideration ought to be that settlement is not necessarily the terminal objective of mediation. Mediation effectiveness should be assessed not in terms of “deal or no deal” but rather “deal or informed decision” on what course of action might best serve a party’s core needs and interests.
A mediator’s job is to positively influence party decision-making by, in part, helping parties to obtain and process the very best information that they can in reaching a sound, informed decision on a path forward. When this occurs, settlement often is achievable, and a mediator need not set upon the ethically fraught slippery slope of “strong selling” settlement.
Presentation and Persuasion
This concerns the “mediator persona,” one’s very ethos, presence, communication style (verbal and nonverbal), and human connectiveness with all parties, participants, and stakeholders in the mediation process.
As with all parts in this series, the central thesis remains consistent: if they are to be helpful and effective, mediators must positively influence the “mind shifts” that must occur from the point of problem recognition to negotiated outcome.
Persistence
A mediator should never be the first to throw in the proverbial towel when the going gets tough. As long as the parties are willing to remain at the problem-solving table and stay constructively engaged, the mediator should persist in coaching them through the turbulence and into calmer waters.
An American Bar Association (ABA) task force report1 on mediation-process quality found that, along with preparation, in-house counsel universally valued persistence highly as an attribute of effective mediators.
Productive mediators are measured in terms of their ability to encourage parties to hang in there and continue working on the problem. This, however, they must do ethically, without exerting undue pressure on a party to accept a preferred outcome.
There you have it—10 crucial mediator skill sets that transcend individual parties and their problems, which can be applied to any mediation process.
1“Task Force on Improving the Quality of Mediation,” Final Report, American Bar Association, Section of Dispute Resolution (February 2008)
MEDIATION MIND SHIFTS: Part 3 will address the crucial opening presentations phase of the mediation process—key elements, pitfalls, and pointers.
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