Generally speaking, mediation is unregulated, which means that anyone may call themselves a “mediator” and any process involving a “mediator” is called “mediation.” On October 22, 2014, I read a wonderful eBook by Brandon S. Peters titled “How to Select the Best Mediator.” In his book, Mr. Peters makes the following statement, which I agree with completely: “Your success at mediation is directly tied to your choice of mediator…. The three most important elements of selecting the right mediator for your case: (1) Approach; (2) Style; and (3) Background…. Different cases require different approaches to mediation….”
Mr. Peters then describes the various approaches and explains them. He describes the Facilitative Approach in pertinent part as follows:
Using the applicable law merely as a reference point, a facilitator places a premium on each participant’s feelings about fair outcomes. When the issues become too thorny, the facilitative mediator keeps the participants’ attention focused on the process by which they exchange information….
The facilitator works to help identify the best interests of the parties and then focuses on satisfying their unique needs. Facilitative mediators never lose sight of the fact that sometimes the best outcomes have little to do with a party’s legal rights, financial interests, or the probable results of a trial….
This type of mediation can be very challenging; your choice of mediator can easily make or break the mediation conference. An effective facilitative mediator must possess active listening skills and the ability to discern important, underlying issues. He must also have an appreciation for the unique perspectives of each party and the wherewithal to help the participants realistically identify their best interests….
In disputes where the emotions of the parties are running high or the clients are ‘difficult,’ facilitative mediation is normally your best choice.
Situations most amenable to this type of mediation include labor and employment controversies, dissolution of business associations,and the repair of established relationships between individuals or groups that will continue to interact long after their dispute is over. Family law matters such as dissolution of marriage and child custody respond well to this approach. These situations can be mediated before the need to initiate litigation arises or after litigation stalls.
In facilitative mediation, the mediator’s knowledge of dispute architecture, negotiating strategies and human dynamics are the most important variables. Specific legal experience or knowledge of the particular subject matter in dispute is not necessarily as important.
Put differently, the success of a facilitative mediation conference turns on the mediator’s ability to influence the behavior of the parties at the bargaining table. A highly-skilled neutral should be able to guide the parties in examining their primary differences honestly and pivoting their thinking as needed to achieve a self-directed, mutually acceptable resolution.
Interestingly enough, the vast majority of family law attorneys use retired judicial officers and the like to mediate family law cases and these are not the skills that judges possess by virtue of having decided cases in a courtroom. However, lawyers are uncomfortable with this type of mediation because it is less about the law and more about the clients’ needs, interests, values, goals and fears. Retired judicial officers and the like can most certainly resolve these types of legal disputes. But if there are children of the relationship (regardless of their age), the disputants still have to interact with each other long after the legal dispute is over. Therefore, the lawyers’ choice of such mediators typically damages the family dynamics to a very great degree.
The mediation approach used by retired judges and the like is referred to as evaluative mediation and some refer to it as “soft-arbitration.” I refer to it as “an alternative form of litigation.” In his book, Mr. Peters describes such mediators in pertinent part as follows:
An evaluative mediator provides hands-on guidance to the parties regarding the most appropriate settlement terms within the unique legal, economic and cultural circumstances of each dispute….
An evaluative mediator is not shy about sharing his professional opinion on the likeliest range of potential litigation outcomes. That range, which is often expressed in dollars and cents, normally becomes the focus of the negotiations….
Rarely will evaluative mediators engage the parties about their concerns or feelings and will often ignore those issues altogether….
Contract disputes, complex business torts and other commercial controversies are particularly responsive to evaluative mediation. Irrespective of the type of case involved, evaluative mediation works best when the parties are well-informed about all aspects of their case. That usually occurs after extensive formal discovery.
In general, evaluative mediators have more specialized knowledge than non-evaluative mediators regarding relevant law, applicable industry practices and the cultural conditions bearing on any given dispute. Professional neutrals with significant legal experience – especially as trial lawyers – can be very effective when circumstances call for the evaluative approach. When using it, the mediator is focused not so much on the specific interests of each party but rather on their shared interest in identifying the most expeditious ways of avoiding the zero-sum results of a trial….
Evaluative mediators have their place, and resolution can usually be reached in one session. However, evaluative mediation techniques may cause a degree of client angst that attorneys must consider when selecting a mediator.
As I keep saying, this type of mediation is not conducive to family law matters. If family law attorneys were more psychologically-minded and child-centered, they would not be using such mediators to resolve their clients’ cases.
In his book, Mr. Peters describes transformative mediation in pertinent part as follows:
Some disputes cannot be resolved unless one or more of the parties undergoes a transformation of perspective. Hence, the emergence of a relatively new mediation approach – ‘transformative.’
Transformative mediation takes a socio-communicative approach to human conflict. According to this model, a dispute represents an interactive crisis that has a destabilizing effect on each participant. Using this approach, mediators first address the parties’ underlying conflict before they turn to the task of attempting to resolve their dispute.
Consequently, transformative mediation first attempts to effect change among disputants on emotional, spiritual and intellectual levels to eliminate obstacles to reconciliation.
Advocates of transformative mediation posit that disputants have the capacity to change the quality of their interactions from destructive to constructive, enabling them to resume a healthy relationship. The transformative approach is most effective in cases where there is a fundamental need to understand another party’s values, interests or points of view (as in family or church conflicts).
It is important to keep in mind that this is not a skill-set learned in law school, by virtue of practicing law, nor is it developed while sitting on the bench and judging cases.
It should be noted that people involved in family law disputes tend to hire facilitative mediators, when they select the mediator before selecting the attorneys. The moral of this story is that it is essential for people involved in family law disputes to select the mediator before involving attorneys! By the way, when using consulting attorneys on a matter that is being handled in non-evaluative mediation, I strongly advise that you get referrals from the mediator because those same attorneys who are uncomfortable with this type of mediation will blow up agreements that work perfectly well for the participants themselves. Please understand that they just can’t help themselves. After all, as Jerold S. Auerbach explained in his article titled “Why lawsuits are such fun – Welcome to Litigation” that was published in the New Republic on January 17, 1981, “In litigation that goal ought to be the client’s interest, as the client defines that interest. The more control the attorney retains, the worse the client will feel – and, the evidence suggests, the worse he will fare in protecting his own interests….” In other words, keep the litigation attorneys out of the picture, if at all possible.
Mr. Peters ends his book with a section titled, “What Defines a Highly-Skilled Mediator?” In that section, he states in pertinent part as follows:
It is important to understand that mediators come in all skill levels…. Your job is to match a mediator’s skill level with what is required to resolve your case….
What about more complex cases? What about cases with recalcitrant parties or highly charged emotional issues? And what about the cases that make you lose sleep at night? For those, a highly-skilled mediator is an absolute necessity if you expect success.
To find such mediators, you need to know what defines them as being ‘highly-skilled.’ I am not referring to years of experience. Instead, I am referring to specialized training in specific disciplines and unique skills that have been carefully honed.
Currently, there are not many mediators with such elevated skillsets….
The skills that make this kind of mediator so effective include:
* Fluid use of the eclectic approach, moving seamlessly from one technique to another to keep the mediation process going forward;
* Flexible style, ranging between moderately-and highly-involved, as the need arises;
* Highly-refined interpersonal and communication skills;
* Deep understanding of the anatomy of disputes and conflicts (a/k/a dispute architecture), together with the ability to disassemble a controversy and reframe individual issues to create better understanding among the parties involved;
* Well-honed and creative problem-solving skills;
* Attention to the details of a case with a thoroughness that leaves no possibilities off the table;
* State-of-the-art negotiating skills — a discipline where best practices are ever-changing;
* Game theory — a science that has its origins in complex mathematics yet has proven uniquely successful when applied to mediation. Defined as the study of strategic behavior in humans, game theory rests on two major assumptions: people act rationally, and they choose options with the highest perceived value. Research proves that each party’s choices and actions in mediation are influenced by that party’s perceptions of every other participant’s choices and actions.
Lastly, and perhaps the most telling characteristic of the highly-skilled mediator is:
* The humble recognition that he does not know it all. Such a mediator constantly
dedicates himself to enhancing and expanding the scope of his skills to address more effectively the new challenges emerging in our profession.” (emphasis added)
This is exactly what I am doing the many hours a day I spend reading through so much material, sharing what I find valuable, and later synthesizing it into one of my many articles.
It just so happens that on the evening of November 11, 2014, I received an email from a mental health professional from Chicago with whom I have become acquainted through the social media, asking for my advice. I responded to the email and we spoke late that evening. I asked about the situation and said that I would assist in any way that I could, but that I couldn’t provide any legal advice because I am only licensed to practice law in California. When I opened my email the following morning, I noticed that I had received the following recommendation on LinkedIn from this professional:
“Mark is truly an amazing mediator and committed to doing what is in the best interest of all parties. His ability to capture the essence of a conflict and move people to a place of empathy and compassion so as to reduce financial costs is beyond impressive. As in all professions, there are good and bad practitioners; Mark is a good one and I highly recommend you consult with him first for your family law matters.”
It is important to recognize how valuable this individual found my advice, even though it had absolutely nothing to do with the law.
I cannot thank Mr. Peters enough for putting so much effort into writing such an outstanding book and highly recommend that every professional involved in dispute and/or conflict resolution and everyone involved in a dispute and/or conflict take the time to read this book.