What makes a good mediator? And how is it that mediators—who themselves lack any power to impose a solution—nevertheless often lead bitter disputants to agreement?
Of course, serious mediation training and substantive expertise are critical, as is keen analytic skill. But according to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important to effective mediation than employing specific mediation techniques and tactics.
To gain parties’ trust and confidence, rapport must be genuine: “You can’t fake it,” one respondent said. Before people are willing to settle, they must feel that their interests are truly understood. Only then can a mediator reframe problems and float creative solutions.
Goldberg’s respondents could report only their own perceptions about why they succeed, of course. A detached observer or the parties themselves might have very different explanations. Indeed, one of the tenets of mediation practice is to work subtly so that parties leave feeling as if they have reached accord largely on their own, a strategy that is meant to deepen their commitment to honor the agreement.
In an earlier study by mediator Peter Adler, his colleagues explained their success by discussing “the breakdowns, breakthroughs, and the windows of opportunities lost or found.” By contrast, participants in the same cases remembered the mediators only as “opening the room, making coffee, and getting everyone introduced.”
This research offers two lessons for negotiators—including those who must resolve disputes and make deals without the help of a third party. One is the importance of relationship building, especially in contentious situations. Some measure of trust is required before people will open up and reveal their true interests. The other is that a hallmark of an artful process is that others do not feel maneuvered or manipulated.
What do you think makes a mediator good? Let us know in the comments.
Adapted from “Rapport Comes First,” first published in the Negotiation Briefings newsletter in 2010.
I’m curious to understand what you mean when you say ‘serious mediation training’. Mediation training in the UK tends to follow a standard format of 5-days of process and skill practice, I think it’s a good place to start but I don’t think it’s satisfactory in terms of helping to develop skilled practitioners. I’d like to see a lot more rigour around mediation training I’d even go as far as to suggest an academic qualification as a starting point so that practitioners understand the theory that informs their practice.
Regarding having substantive expertise I used to believe that this was more of a hinderance than a help but I’m coming around to the idea that it can be more of an asset as long as the mediator and the parties are aware of this expertise and that it doesn’t interfere with party self determination.
We’ve a long way to go to develop the field and it’s always helpful to have a forum to debate these issues.
I am sceptical about making an academic qualification a condition to mediating a dispute. I hold an LLM in alternative dispute resolution. While my LLM coursework has been valuable, it has not addressed many of the challenges I have experienced as a mediator during the 20 years I have practised since obtaining my LLM. What is needed are rigourous examinations of steps which contribute to success in mediation, and those which contribute to failures. If there are rigourous scientific examinations of this topic, they are hard to find. Similarly, when I approach esteemed mediators for advice on the challenges I experience, their responses tend to be unsatisfactory. It seems the best mediators may not do not be aware of what makes them effective, at least to the extent they can communicate that information to others.
Rapport and trust is essential in any resolving any dispute and in mediation especially it is a key factor as both sides to the dispute must trust the mediator. Also to the previous comment, in Ireland the mediation training process is the same in Ireland and perhaps more intensive and rigorous training would see the value of mediation increase in the future.
I had no idea that mediators were such a valuable career choice. It must take a good amount of acting skill and real understanding to not “fake it.” I could never be a mediator, but the skills required interests me. Maybe I could take a couple lessons!
Like great leaders, mediators use influence in ways that enable disputants to visualize the benefits of (co-created and creative) self-determination. Creativity training will likely become a separate discipline in law and in business (and certainly for business mediators)!
I think training alone, be it 40 hours or 300 does not necessarily result in a competent mediator. Training and supervision/peer discussions are lifelong needs of mediators. I think what makes a truly good mediator is the ability to self-reflect and use our inner lives to truly connect to our clients and understand their concerns and deep emotions. This is the way to remain authentic.
I recommend Gary Friedman’s book « Inside Out » to every mediator and his self-reflection programs as well.
Our clients know when we are not being emotionally dishonest and they will be suspicious of anything we say.
Excellent comment. Really agree about the self-reflection in service of fostering connection. The interest and curiosity must be authentic…the techniques involved are secondary. During my time with parties, I see to meet them where they are….who are these people? What do they care about? Their fears and aspirations? Truth is, I may have more or less forgotten them a week later but while we are together, I try to make them the most important people to me.
What makes a good mediator? In the blog above, the writer opined that a good mediator should be able to develop a rapport with the parties. Much as I agree with the writer, I would say a mediator also needs to be a patient and keen listener, not only to verbal communication but also to non-verbal ones.
1. Trust. 2. Trust. 3. Trust. And: Asking parties to discover what they have in common and truly understand Maya Angelou’s “We are more alike my friend than we are unalike. Yes….” Finding common ground.
An effective mediator understands the law at issue, understands it very well. He or she has scrutinized the briefs and has questions ready for the attorneys regarding the brief. An effective mediator evaluates a mediation brief beforehand and sends it back if an attorney cites unpublished cases or bad law. The mediator asks legal questions to help attorneys understand when their case law is irrelevant to the issue at hand. Attorneys can go back and forth about what cases mean; they need someone to understand the law and help the sides know whether they have a strong argument or not, If they do not, they may become more conducive to settling, I don’t like the idea of mediators needing to establish rapport, We’re all professionals. Some attorneys want an interpretation of the law that is ridiculous and they need to be educated in order for the settlement process to move forward. I think the break out rooms are silly. The mediator should have people in the same room to hear arguments and refute them in turn. A mediator needs to be strong enough to direct effective discourse and interject when digressions occur. The mediator uses effective management techniques to control unprofessional conduct and behavior not conducive to mediation. I could go on forever, but these ideas seem integral to the process.