This is the title to an article from the Harvard Law School Program on Negotiation dated November 16, 2015. The article points out that more than education is needed when looking for a mediator. The article also points out that establishing rapport is more important than employing specific techniques. I could not agree more.
On November 17, 2015 I was on a panel with four other mediators speaking to third year law students at the William Mitchell College of Law in St. Paul that are in an Alternative Dispute Resolution class. We shared this perspective and encouraged these students to look for volunteer activities to enhance their skills. I still volunteer with in Ramsey County Court monthly (I try to do this twice a month) and with the Dispute Resolution Center related to community, public housing, landlord tenant and other disputes. There is no substitution for experience. Although my paying clients are business to business, business to government and within businesses, I find that the volunteer experiences are also very gratifying and it is one small way to give back.
With this as background I want to share with you a recent training session with experienced mediators before coming back to the panel discussion.
I attended at the Minnesota Bar Association section on Alternative Dispute Resolution with a focus on “Mediation Orientations … Can They All be Right?” on November 10, 2015.
First, I want to congratulate the five very experienced and well know mediators from the twin cities as well as the participants to the process. As a new twist five different mediators were given some preliminary information regarding a scenario and actors played the participants as well as attorney’s representing the participants in a dispute. Each of the five mediators initiated the session while the process was being recorded. I have to hand it to the five mediators for having the guts to be filmed in this type of scenario and for letting the rest of us comment on what we thought of the approaches presented. The mediator and participants were all in the same room, but seating arrangements were different for different mediators and the approaches taken varied.
This is the first time I have ever seen five different mediators given essentially the same facts mediate. This was very eye opening. From the initial opening with the orientation, ground rules commentary, opening questions, evaluating risks and more we were able to see and evaluate the strengths and weaknesses of the mediators and their approaches. This was very eye opening. This was very instructive. It gives an experienced mediator like me cause for pause. We need to explore our own biases and how we impact the process by the questions we ask.
This left me with thoughts about the very different approaches presented by the mediators. This also let me think about the quandary the public is in when choosing a mediator. When choosing a mediator it is important to know whether the mediator is going to focus solely on the problem at hand (facilitative mediation) are working to get behind the problem regardless of the initial issue (transformative mediation) or want to provide evaluative and constructive commentary from a legal perspective (evaluative mediation). For an excellent primer on this topic and for pros and cons relative to the approaches see this article from mediate.com.
Returning to our five member panel from last night, we had a former judge who indicated many times her clients don’t know what they want, but in her instance practicing in workers compensation mediation, it is all about computations and generally evaluative in nature. Most of the time this is completed with the parties in the same room, but in rare instances, this may be completed with the mediator shuffling between two rooms. Most of her work is evaluative.
Another party specialized in family law and he always conducts mediations face to face using transformative mediation. He is from a more rural area and he compared his work to those of us working in an urban and suburban setting.
Another party shared how her community mediation and restorative justice not for profit program works giving mediators real hands on experience right away in a host of areas that may be either transformative or facilitative with face to face meetings.
Still another member of the panel working in areas that include diversity and cultural differences, generally encourages face to face transformative mediation.
In my practice many times clients don’t know what they want so after explaining the differences they typically want either facilitative or transformative mediation if indeed they want mediation. If they are so position based that they are not interested in moving off their position or trying to understand the interests of the other party, than arbitration or legal venues is a much better option. Sometimes after discussing various options they opt out of me being a mediator and instead they ask me to come on board as part of their negotiation team. They ask me to bring in concepts from neuroscience and experience in negotiations to help them with a negotiation instead. I have learned to be a demand pull supplier of services dependent on understanding the needs of the client rather than a supply push provider of services.
When I started this business four years ago I was a supply push person. I offered services.I was looking for clients interested in those services of mediation, IRS issues, business valuation reviews and planning. I still do those things, but four years later I see myself as a solution provider (further define the problem and either assist with a better defined problem or network to find an expert in my listing of 3,000 contacts to help them), conflict resolution (may be mediation or part of a negotiation team), and leadership (training others in conflict resolution and leadership development).
So if you need some assistance with respect to a conflict and you think a mediator could help, explore your interests first. Understand the different types of mediation. Ask a mediator what his or her approach will be regarding the issue and have them explain the process. If this is what you are looking for you should initiate the process. If this is not what you are looking for walk away and continue the search. Feel free to contact me if I can help, and I would be happy to point you in the right direction. Generally I receive two or three calls a week, and I am always happy to help. It is a blessing to be able to pass it forward and help others.
I can be reached at 651-633-5311 and at email@example.com.
If you found this commentary useful and you think someone else may find this of interest, please share this with them.
About the author
Mike Gregory is a professional speaker, an author, and a mediator. You may contact Mike directly at firstname.lastname@example.org 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]