How does mediation work in a lawsuit? For those new to mediation, we advise you begin by getting a list of mediators from a reputable provider agency. You can find these agencies by inquiring with your organization’s legal department. You should ask the mediators for 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 our negotiation research on alternative dispute resolution methods finds that the talents of successful mediators can serve as guidelines during this process.
According to expert mediators we interviewed, success in mediation comes from these three traits:
Mediators agreed that the key skill of successful mediator is the ability to develop rapport – a relationship of understanding, empathy, and trust – with each of the disputing parties. Rapport encourages 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, and weaknesses.” This information is often the key to settlement … their telling me what they haven’t told the other party,” the mediator said. (See also, Successful Negotiation Examples: Repairing Relationships and Dispute Resolution Using Negotiation Skills)
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’s interests. “It is vitally important to be able to think of new ways of dealing with issues,” one mediator told me, “inventing options, acknowledging feelings, perceptions, and hurts that might otherwise block meaningful and fair resolution.” (See also, Negotiation Skills – Expanding the Pie: Integrative Bargaining versus Distributive Bargaining)
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 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.”
Adapted from “Choosing a Mediator” by Stephen B. Goldberg in the August January 2006 issue of the Negotiation newsletter.
Originally published November 2013.