Is Mediation Expertise What You Need?

In this article from the Harvard Law School Program on Negotiation the authors indicate that

“In this article, we will walk you through the processes of finding the right mediator – someone who will be satisfactory to both sides – to settle your disputes”

In reality the article indicates that mediation skills trump technical skills even in complex technical areas.  To this I agree. However, the article fails to walk you through the process of finding the right mediator.  In my new book, Peaceful Resolutions, a 60-step illustrated guide to the art of conflict resolution, one chapter addresses mediation I offer some thoughts to help you with this in the chapter on mediation. I want to share some excerpts from that chapter that I think can help you with trying to find the right mediator and of course you may always contact me.  I am always ready to help either as a mediator or to help you find the right mediator for your concern.

Here are some excerpts from Peaceful Resolutions.

I first offer some information from the introduction to the chapter on mediation and then an excerpt from step 46 on selecting the right mediator for your situation to help you with this question.

“Mediation involves a third party working with two parties to try and resolve an issue. A client-based mediator can save parties time, resources and energy. A true mediator is one who can “empty himself or herself” and not have an opinion. The true mediator is self-aware and able to manage his or her behaviors and triggers and can develop trust with the parties.

Mediation is an entire curriculum, but I would like to introduce mediation and show how it differs from arbitration. In arbitration, the arbitrator hears the evidence and makes a decision like a judge. In pure mediation, the mediator does not offer personal opinions or steer the participants in any direction, but rather allows the participants to make all of the decisions and instead focuses the participants on the problem.

The mediator’s essential role is to balance power between parties and provide a neutral perspective. In theory a mediator is a true neutral. In reality a professional mediator attempts to be a true neutral and keep power balanced, and in many instances those trained and experienced in mediation may be able to come pretty close to that.21

Since we are only human and we come with our biases, stereotypes and flaws, we see we cannot be purely neutral. Behind every residential doorway in the city or village is a different person or persons with their own particular story. And as a professional mediator I must make every effort to be a neutral party in any dispute. As a trained and experienced mediator I sometimes have to decline engagements when I know I may have an opinion that may prevent me from being neutral.

Types of Mediation

If you decide you need a neutral mediator you should do research and select a trained and experienced mediator who can meet your needs. You will have the option of choosing one of three kinds of mediators: facilitative, transformative or evaluative.

Facilitative mediation is the most widely used style of mediation. It focuses on addressing the interests (needs) of parties involved in a specific issue. The goal of facilitative mediation is to work with parties in a conflict to develop their own solutions based on common needs or interests. Facilitative mediators focus on the specific issue before them and encourage creativity between the parties. Facilitative mediation works to address a specific issue between the parties and encourages balance between the parties. For example, if a facilitative mediator addresses a landlord-tenant fee dispute regarding rent not having been paid, the unpaid rent would be the only issue to mediate in a facilitative mediation. The process would involve focusing on the issue, validating each party’s perspective, searching for interests underneath positions taken by each party, rephrasing comments in a neutral fashion, and assisting the parties to analyze and find an acceptable resolution. Facilitative mediation is entirely client-based in that the parties make all the decisions. The mediator does not interject personal opinions or give advice or indicate what the potential outcome might be if the case were to go to a judge. The mediator sets up the process and the parties decide the outcome. In the landlord-tenant dispute example, the tenant may come up with a plan to pay the back rent acceptable to the landlord, or the tenant and the landlord may decide to go their separate ways with an amicable vacate date and process. The facilitative mediator may provide support such as payment plan computations worked out by the parties. Facilitative mediations generally occur face to face, but in some instances may be in separate rooms with the mediator travelling between rooms. Facilitative mediation is used primarily in business settings and in court settings with separate rooms provided by the court for the mediations.

Transformative mediation focuses on empowering and assisting parties to recognize and explore the underlying needs, interests and perspectives of the other parties. The goal is to have the conflicted parties learn about the other party and to become transformed through the process. The goal is not to solve the specific issue, but to provide new tools to the parties and give them a better understanding of each other, and hence help them to resolve their own disputes in the future. Referring again to the landlord-tenant fee dispute issue, the parties would have opportunity to gain a true appreciation of each other’s needs, interests, perspectives, and concerns. Once that mutual education is accomplished, and there is a new basis of understanding, resolving the immediate landlord-tenant issue may be possible as a by-product. Resolving the immediate dispute is not the overall goal of transformative mediation. Rather, the overall goal is to heal and transform the general relationship between the landlord and the tenant; it is assumed that the specific factors causing the trouble will be healed as a consequence of the transformative mediation. The transformative mediator provides no input into evaluating alternatives, and these mediations are nearly always completed face to face. In doing a transformative mediation the principle of fairness is uppermost. If the specific issues causing the dispute are not addressed or not resolved by the mediation the transformative mediation may still be considered as success so long as the underlying relationship between the parties is transformed. Transformative mediation is used less in business disputes and court type settings and more in family type settings.

Evaluative mediation is modeled after what a judge may determine if the case were to go to court. It is popular in the era of court-ordered mediation as a way of resolving cases based on the strength of legal issues in a case. Often retired judges and attorneys are involved in evaluation mediations, and they commonly use this approach. That is, evaluative mediation leads to resolutions based on the strength of facts in an issue, and is decided by parties based on what they are advised a judge may decide. The evaluative mediator provides an opinion on the likely outcome of the case should it proceed to litigation. It thus resembles a settlement conference where parties meet separately with the mediator and evaluate their case and outcomes based on points of law. Legal rights and obligations of parties are uppermost, and resolutions made are not focused on preserving relationships of the parties as much as on the legal rights that they have in their case. The interests of the parties while acknowledged are not drivers of the decision. Fairness is immaterial to the decision making. The evaluative mediator is directly involved in the decision making and helps to structure the agreement. The evaluative mediator directly influences the outcome of the mediation. These may be completed face to face, but depending on the parties may be completed with the mediator going between the rooms.

The law is critical to making an appropriate decision. In the landlord tenant case the evaluative mediator may indicate that rent is due, court filing fees are also due, if the tenant cannot pay at the date of the court hearing then the tenant will need to vacate within two days if there are no minor children and have up to one week if there are minor children. There will be an unlawful detainer on the tenant’s record for the next seven years making it harder for the tenant to rent an apartment in the future and it will likely increase the risk assessment of the tenant going forward resulting in a higher interest rate on a credit card or loan. Many mediators that practice facilitative or transformative mediation look at evaluative mediation as a form of pre-settlement hearing rather than mediation. Mediators have opinions as well.

All three methods empower parties to make decisions, but in evaluative mediation the mediator is directly involved with influencing the final outcome of the dispute based on his or her analysis of the facts and law. Transformative and evaluative mediations typically take longer than simple facilitative mediations. Transformative mediators often indicate that too much emphasis is being placed on the issue and not enough emphasis is being put on the relationship. Evaluative mediators consider the legal ramifications. Attorneys and retired judges provide evaluative mediation, and may venture into facilitative or transformative mediation. It can be very hard for an evaluative personality to make this change given their legal backgrounds, but it can be done by someone with the right disposition and training. Some mediators may be more active in their approach and others less active with the participants. These styles depend on the parties to the mediation and the style of the mediator.”

 

Step 46: Select the Right Mediator for Your Situation

“It is very important to select the right mediator. The mediator must be able to establish trust with a professional rapport and be patient and work creatively with the parties. To develop trust and establish a professional rapport the mediator must develop understanding and empathy with the parties. While focusing on the task at hand the mediator needs to give the parties adequate time to fully voice their concerns and present their emotions and ideas. The third key talent is to bring forth creative ideas only after fully understanding the interest of each party. Inventing options that acknowledge feelings provides for meaningful and fair resolutions. An outside mediator has no stake in the outcome, and the mediator attempts to keep the process balanced. The mediator never pushes one side or the other. Neutrality is actually very difficult to maintain. Michelle Maiese points out that even the term “neutral third parties” means different things.22 Robert Benjamin, for instance, says that neutral mediators:

1. will not intervene in the substance of the dispute;

2. are indifferent to clients’ welfare;

3. have no relationship with the parties outside of the mediation;

4. will not attempt to alter perceived power balance differences;

5. are disinterested in the outcome; and

6. are unconcerned with the impact of the settlement on unrepresented parties.

In contrast, Kevin Gibson, Leigh Thompson, and Max Bazerman (1996) identify three distinct conceptions of neutrality:

1. Neutrality as impartiality, which holds that the mediator should be free of bias and should set aside his or her opinions, feelings, and agendas.

2. Neutrality as equidistance, which focuses on the idea that mediators should try to give equal consideration to each side.

3. Neutrality as a practice in discourse. Mediators are supposed to shape problems in ways that give all speakers a chance to tell their story in a way that does not contribute to their own de-legitimization or marginalization. The mediator gives each side a chance to talk about their positions and concerns, and then reframes these issues in a more neutral way so that parties are more likely to listen to and understand the other side’s viewpoint.

Similarly, Rachel Field (2000) defines “neutrality” to mean:

1. a lack of interest in the outcome of the dispute,

2. a lack of bias toward one of the parties,

3. a lack of prior knowledge of the dispute and/or the parties,

4. the absence of the mediator making a judgment about the parties and their dispute,

5. and the idea that the mediator will be fair and even-handed.

The values and prejudices of the mediator may temper the way in which issues are approached and priorities are set. For that reason it is very important to carefully consider the experience of the mediator assisting with the mediation.

Neutrality means the mediator sets the atmosphere, and the setting should be a neutral location in a space conducive to issue resolution. In a recent case where I was involved one party lives in New York City while the other party has representatives in Vermont and New Hampshire. The setting we chose was a round table in the law offices of an unrelated third party in Boston.

In mediation position-based bargaining is avoided. The goal is for adversaries to become partners focusing on the problem. Interests are identified and reconciled. Factual information is presented honestly and not distorted, and parties who don’t play fair are addressed (such as with a person not telling the truth; to address this problem see Step 44). Creativity is required by the parties to develop options and an acceptable solution.

Tips to Finding a Mediator

•     There is no one-stop mediation service or website. Beware sites where people who want to do mediation services can simply pay an advertising fee and be listed. Buyer beware!

•     Network with others you trust. Go online to search.

•     Do make yourself aware of the qualifications in your state. If your state requires qualifications for mediators, what qualifications are required, if any? Some states do not have required qualifications. In some states you can simply sign up to be a mediator. Other states require a specific amount of training, passing a test, continuing education, and experience in an area to work in a given area. The differences state-to-state are wide. For example in Minnesota where I live a quick search on “Minnesota mediation requirements” on the web takes us to the Minnesota Judicial Branch and significant information about mediation in my state. In Minnesota training is required, a test must be passed, continuing education is mandatory, and mediators declare officially where they are qualified.

•     There may be free mediation services available in your community, county, or state. Check out the free mediation services available. In Ramsey County where I live a web search using the terms “Free mediation Ramsey County” lets me know about alternatives in Housing Court, Conciliation Court (small claims less than $15,000 for claims involving money or personal property), Family Court, and it also points me to the Dispute Resolution Center.

As an example I volunteer in Housing Court and with the Dispute Resolution Center where I have mediated landlord tenant issues. I also volunteer with the Dispute Resolution Center where I volunteer and mediate between townhome association vs. townhome owners, in public housing disputes, in neighborhood disputes, with board of director disputes with not-for-profits or small businesses and others.

•     Explore geographic limitations if that is a concern.

•     Consider the kind of mediation services you are looking for. Three kinds of services (see my discussion) are facilitative, transformative, and evaluative.

•      There are over 50 practice areas: examples may be bankruptcy, creditor/debtor, commercial, community, construction, employment, environmental, family (a wide variety of issues from adoption to spousal maintenance), foreclosure, general civil, governmental, healthcare, housing, insurance, international, labor, large and complex cases, personal injury, professional liability, malpractice, real estate, and securities just to name a few.

•     Are language capabilities other than English a concern? If so, include the other language(s) in your search terms. Don’t forget to explore the free services which may be able to direct you to those with experience in other languages.

•     Do you need an online mediation because you are geographically isolated or because you cannot find a neutral party in your area? Consider a virtual mediation with the Virtual Mediation Lab in Hawaii.

•      What are the costs? There are generally two costs: one an upfront application cost to evaluate your case and interview the parties ahead of time as a onetime fee; and the second an hourly rate.

•     Payment schedule – generally people pay as they go at the end of each session.

•     Who pays? One party or both parties? If both parties pay, do each pay an equal amount or by a pre-agreed formula? Who is liable for payment if one party does not pay? These need to be determined in advance.”

Mike is a manager with over 25 years’ experience at all levels of management.  Mike provides services related to negotiation, mediation, and value added services (business valuation reviews, research credit advice, transfer pricing assistance, strategic planning and leadership development) to help clients and boards of directors on a wide variety of issues.  When not serving clients as a consultant or blogging, Mike is an avid writer, speaker and educator.  When not working Mike enjoys family, church, volunteering, and daily yoga, meditation and exercise.

About the author

Mike Gregory is a professional speaker, an author, and a mediator. You may contact Mike directly at mg@mikegreg.com and at (651) 633-5311. Mike has written 12 books (and co-authored two others) including his latest book, The Collaboration Effect: Overcoming Your Conflicts, and The Servant Manager, Business Valuations and the IRS, and Peaceful Resolutions that you may find helpful. [Michael Gregory, ASA, CVA, NSA, MBA, Qualified Mediator with the Minnesota Supreme Court]