27 Nov 2018
What do you think makes a good mediator?
By Ana Virginia Bauder, ADR Consultant, Trainer and Mediator, CEDR
Anyone contemplating using a commercial mediator to resolve their dispute needs to have their own confident answer to this question. Working with mediators you have used before and liked is sensible, as is asking colleagues about the mediators they have used. Yet how does a lawyer explain to their client why they recommend using a mediator beyond saying “they have a good reputation”?
Certainly, CEDR’s biennial 2018 Mediator Audit tells us that most lawyers think the majority of mediators are doing a good or very good job in their mediations. What it is always useful to know more about is which are the components of a mediator that are particularly valued.
Defining the difference
The success of mediation usually depends on two factors - the preparation and willingness of the parties to take part in the process and critically the skill of mediator. As a provider of mediation services, CEDR focuses its attention on what makes a quality mediator.
CEDR provides its Training, which leads to CEDR Accreditation (which has an 80% pass rate), a ‘driving licence’ to say a mediator is safe ‘on the road’ to start mediating. The Training assesses an individual against a number of core competencies that a mediator must display to show they are proficient. However, an invitation to join CEDR’s prestigious Mediator Panel is a commercial decision based on an individual’s professional background and current mediation practice combined with the requirements of the marketplace.
Whenever possible CEDR takes feedback on its mediators from lawyers and clients in the 600 plus mediations it arranges every year. It allows us to ensure the quality of the mediators we keep on our panel. Furthermore, it helps CEDR to understand what clients like about mediators, as we ask the question how do you know what a good mediator looks like?
The main themes fed back from mediations
From the feedback CEDR gets we see typically similar positive points about mediators emerging from the users of our services:
- We hear that it matters that the mediator really understands the issues and beyond this is sensitive to both the commercial and personal issues in the case.
- Alongside this is the ability of the mediator to create rapport with the parties and ensure that they are engaged in the process of finding a resolution. Characteristically we expect mediators to be highly prepared for the mediation they are about to undertake - which should be apparent to the parties - and helps the parties build confidence and trust in the mediator.
- Perhaps most importantly, we know what is valued is the mediator’s ability to keep the process and negotiations moving. The vast majority is of commercial mediations are already deadlocked (or close to being deadlocked) negotiations and therefore the ability of the mediator to remain focused and work with the parties to overcome an impasse is viewed as crucial. We especially see this opinion about perseverance held by the lawyers who mediate regularly and with different mediators.
And what does a bad mediator look like?
Law firms that we work with also tell us about the mediations they do independently of CEDR and what they see as unhelpful in other mediators. Here are some of the recent criticisms we have been told about non-CEDR mediators:
- The main point we hear is that lawyers dislike it when a mediator is only focused on the legal arguments in a case, spending too long looking at the law at the expense of trying to work with the parties on making offers. This is not to say that lawyers do not want mediators to understand the legal arguments but they have come in the hope of seeing if a deal is possible and do not want to end the day without having explored if a settlement is possible.
- Mediators who are only there for “the day” are seen as not adding value. A mediator taking the time to understand the case and the personalities in advance of the session is appreciated. What is particularly seen as important is the ability and willingness of the mediator to stay in touch with the parties after the mediation day if there is not an agreement. In this last instance, there is real value that a mediator can add, as they help parties to keep focus on closing the gap and make a deal.
- Mediators who may lack energy, who cannot keep an appropriate pace to the discussions, are not favoured. This speaks to the effort it can take a mediator to maintain momentum throughout the day in the effort to get the parties to examine their own positions and the other side interests and then move forward with offers.
What do you think?
The topic of what makes a good mediator is one that CEDR consistently looks at. Not only for who we chose to appoint to our Commercial Mediator Panel but also in relation to what we teach delegates on our mediator skills training course? If you are using mediation we would be interested in hearing from you about what you think makes for a quality mediator. The more views we add to what the marketplace thinks about excellence in mediation then the more the field as a whole, and its users, will benefit.
You can contact CEDR with your views by emailing me at firstname.lastname@example.org.