Need an effective mediator?
There are six qualities you should demand.
Optimism
Optimism is infectious. A mediator who exudes optimism reassures, encourages and lifts the spirits of nervous, scared or pessimistic parties–and lawyers.
I’m not talking about irrational optimism. I’m talking about optimism born of long experience of mediation.
Optimism of this sort is important throughout a mediation. Often, a party or their lawyer says to the mediator after the first exchange of offers,
We’re so far apart. This is hopeless. I always knew it was a waste of time to try to negotiate with her.
The optimistic mediator says,
This is normal. People often make an ambit claim in their first offer. It happens all the time. Don’t let it bother you. I’ve seen lots of mediations where the parties were much further apart… and most of them resulted in settlements.
Optimism also is important because the process is new and scary for the parties and, often, for their lawyers too.
The experienced mediator, on the other hand, has seen the dynamic of mediation unfold many times and understands what is happening at each stage of the mediation.
That’s why it is so important for the mediator continually to reassure the parties (and, if necessary, their lawyers) that what is happening––or not happening––is normal and part of the process of reaching agreement.
Optimism is equally important as the mediation nears the point where a gulf remains between the positions of the parties, despite diligent negotiation by them for hours.
They say to the mediator,
We’ve been here for hours and we’re still so far apart. I can’t see how we can possibly reach agreement.
The optimistic mediator says,
It’s absolutely normal to feel that way at this stage. But in fact, we’ve made huge progress. Look at how far we’ve moved towards agreement. And it’s been mutual. I know it feels like we’ve been here a week, but if we all hang in there, it’s very likely we’ll reach agreement.
Optimism is equally important as the mediation nears the point where a gulf remains between the positions of the parties, despite diligent negotiation by them for hours.