Choosing a mediator

By on / Daily, Mediation

Adapted from “Beyond Blame: Choosing a Mediator,” by Stephen B. Goldberg (professor, Northwestern University), first published in the Negotiation newsletter.

When a negotiation escalates into a dispute, most managers understand the value of seeking out a mediator for professional assistance with the matter. The question of whom to hire, however, is less clear-cut. What type of expertise should your mediator have, and where should you look for him?

When choosing a mediator, keep in mind that you need not accept the proposals that he makes. In other words, you have total power to prevent mediation from leading to an undesirable outcome. As a result, the only risk of mediation is that you will expend time and money without reaching agreement. Indeed, one Fortune 100 company is so firmly convinced of the value of mediation that, as long as the other party seems to genuinely want a good-faith resolution, it will get a list of experienced mediators from a reputable and neutral mediation agency and let the other side select anyone on the list.

For those new to mediation, begin by getting a list of mediators from a reputable provider agency. You can find these agencies by searching under “dispute resolution” on the Internet and/or by inquiring with your organization’s legal department. You should ask the mediators for the names of the chief negotiators for each party in the last three cases that they mediated. (The chief negotiator will typically have been the party’s lawyer, although this is not always the case.)

Next, contact these chief negotiators and question them about their experiences with the mediators that you’re considering. The results of my research on the talents of successful mediators can serve as guidelines during this process. I surveyed 30 of the top mediators in the United States. According to these expert mediators, their success comes from focusing on three key areas:

1. Rapport. The mediators agreed that the key skill of a successful mediator is the ability to develop rapport—a relationship of understanding, empathy, and trust—with each of the disputing parties. A sense of rapport can encourage parties to communicate fully with the mediator, often providing her with the information she needs to find a mutually acceptable settlement. One mediator said that rapport is essential to building the trust needed for parties to share “their interests, priorities, fears, weaknesses.” “This information is often the key to settlement … their telling me what they haven’t told the other party,” the mediator said.

2. Creativity. Another key talent of successful mediators is creativity—the ability to generate novel solutions. This ability clearly springs from a focus on interests. Only by understanding each party’s interests can a mediator generate creative solutions that satisfy each party. “It is vitally important to be able to think of new ways of dealing with issues,” one mediator told me, “inventing options that acknowledge feelings, perceptions, and hurts that might otherwise block meaningful and fair resolution.”

3. Patience. It is also important that your mediator be patient, giving you and your opponent as much time as you need to fully express emotions and ideas, while at the same time focusing intently on the primary task—dispute resolution.

“I am tenacious,” one mediator said. “I don’t give up. I have sat with parties who have claimed they simply don’t see a way to a resolution and said, ‘Well, we’ll just sit for a while and think more on it.’ Most parties are loath to send the mediator packing, so they sit and usually think of something, especially if I occasionally throw out an idea.”

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