MEDIATOR SELECTION & EVALUATION
Table of Contents
In the last ten years the Civil Litigation Arena has experienced the massive introduction of new ADR practitioners in both Mediation and other ADR approaches. In most venues where mediation is being actively utilized quality control is primarily exerted by the marketplace's control of its own checkbook - thereby averting the need for excessive legislative controls aimed at providing consumers with protection. But while many may theoretically agree on what qualities/qualifications an "excellent mediator" should possess (e.g. honesty, neutrality, assertiveness, diplomacy skills, intellectual brilliance, etc.), it is equally common that parties engaged in a dispute, find it difficult, if not impossible, to agree upon which mediator exemplifies those qualities in sufficient measure to warrant their selection. This is, in part, due to the fact that prospective mediation clients may be at a loss regarding what selection criteria is truly applicable for selecting a mediator. One common reflex is to try to match-up a potential candidate's qualifications with the very same skill-set required for one’s own profession (lawyers-with-lawyers, doctors-with-doctors, engineers-with-engineers etc.). Unfortunately, referencing one’s own professional training as selection criteria often adds even greater confusion - or a false sense of certainty - to an already perplexing process.
It is the goal of this article to offer its readers some tools to assist them in the selection and evaluation of their next commercial mediator.
Mediator Qualifications and Selection
A commercial mediator's primary function is to assist parties in the safe exploration of options for the voluntary resolution of a dispute. Just as it takes professional training plus some indefinable quality for one to excel as a virtuoso violinist; similarly, a successful mediator must possess certain qualities that may not be readily discernable from reviewing a scholarly C.V. With the mediation field opening up to thousands of new practitioners, many end-users labor under the assumption that mediators in litigated disputes need have a legal background eventhough there are many recognized practitioners who did not enter the field from the legal arena. Real expertise in mediation may in fact rely more heavily upon a practitioner possessing the requisite information management and people skills than being able to boast an impressive knowledge of jurisprudence. It seems reasonable to conclude that formal legal training, although perhaps useful, does not, in and of itself, a mediator make.
Recognizing Mediator Expertise, Strategies & Procedural Safeguards
Many parties and professionals who find themselves ensconced in a commercial mediation, understandably may question whether it is prudent to relinquish a modicum of control to a mediator who is entirely new to them. The following section can serve as a consumer guide to help parties evaluate a mediator's judgment and procedural acumen by observing the manner in which both the Joint Sessions, as well as, Confidential Caucuses are organized and conducted.
Setting the Stage
A seasoned mediator recognizes the tremendous importance of a carefully orchestrated initial Joint Session when all the parties and key decision-makers are finally in attendance. This moment is often the first opportunity for all participant/stake-holders to familiarize themselves with the identities of the principal decision-makers critical to achieving a comprehensive resolution. Parties and counsel may appear nervous and on 'hyper-alert' as the mediation first gets under way, many dreading the day’s trajectory; a long day inevitably filled with ‘exaggerations’ and ‘deflections’ by ones adversaries, as well as, provocative and disappointing public exchanges.
Therefore, at these beginning moments, it is critical that the mediator seizes this opportunity to provide formal introductions, explain the structure and utility of each of the day’s procedures, as well as, establish clear rules for professional conduct while making sure that all participants have executed a copy of the confidentiality agreement.
Once parties have been provided with a Procedural Road-Map and Schedule for the day's activities, the mediator will have set in motion a strategically planned dispute resolution process that is founded upon the timely input and constructive participation of each and every stake-holder. Once the mediator has taken care of these preliminaries, the next step is to call upon each party to make their initial presentations in the appropriate sequence (usually starting with the plaintiff).
Capturing and Summarizing Presented Information
A seasoned mediator usually captures the key points of each party's presentation by taking contemporaneous notes, followed by an accurate verbal, word-for-word summary. Here, the mediator can demonstrate their capacity to quickly capture, understand, and collate what often is a huge quantity of disputed factual information and interpretations regarding same.
Demonstrating Neutrality
While recapping each party’s presentation, a mediator must take care to diplomatically disassociate him or herself from any perceived "co-ownership" of a party’s stated positions, statements, interpretations or feelings. To underscore this neutrality, a well-healed mediator will employ such clarifiers during their summary as: "You stated...” "It is your position that...", and "You further explained that," "In your opinion,” “You expressed that you feel” etc.
In the Joint session, participants are likely to be closely observing the neutrality of a mediator's body language during the process of note taking and reiteration. For example, when counsel present their own interpretation of the “facts or probable outcomes” of a litigation, it can be revealing to scrutinize whether or not the mediator's head bobs up and down as if acknowledging the “veracity of a controversial opinion being expressed” or simply when counsel is expressing his or her "sentiments" regarding their clients position in the case ('Feelings' vs. Opinions, are horses of different colors).
Through the expert management and collating of presented information and by the use of appropriate body language while conducting the Mediation’s Joint Session a mediator can establish their credibility while demonstrating their expertise and neutrality, having 'appropriately noted’ the content of parties expressed positions and sentiments.
Private Caucuses
The next opportunity for observing mediator expertise comes at the end of the Joint Session when a seasoned professional will usually provide a schedule that sequences private sessions between each party and the mediator. In the initial Joint Session, the mediator has had an opportunity to hear from all parties as to their opening ‘negotiating positions.’ When the mediator selects the sequence for subsequent confidential caucuses, observant parties may be able to deduce which parties the mediator perceives as possessing crucial information that may be strategic to developing a well-ordered plan for achieving a partial or global resolution.
Observing the mediator at work during a Private Caucus session can also provide parties with valuable insights regarding the mediator’s level of skill and professionalism. Because counsel often elect to theatrically dramatize their ‘negotiating positions’ during presentations to opposing counsel during the Joint Session, there are a number of important tasks to be performed during Private Caucuses, not the least of which is to test the sobriety of each party’s "actual thinking" following their more publicly stated ‘negotiating positions’. This "reality testing" process is often best accomplished by a mediator playing the role of Devil's Advocate.
Team Member Congruency
Members of Each Party's Negotiating Team periodically find themselves at cross-purposes with one another - particularly as it relates to the most effective negotiating strategy or, even, as to what ultimately should be their team's realistic objective(s). The mediator's task in such a situation is to quickly assess the spread of interests amongst members of the same team. Not surprisingly, it can sometimes represent a greater challenge to resolve the hidden divergences between members of the same team than those disagreements in the underlying dispute that were previously aired between opposing parties in the Joint Session.
The Lawyer, for example, may feel confident due to ‘favorable developments’ that have recently occurred through formal discovery and, or during deposition testimony. Thinking that a trial might achieve a more beneficial result than a mediated settlement, the lawyer may be reluctant to enter into negotiations in-earnest, particularly given the opportunity to earn not-insubstantial fees through conducting their party through a well-rehearsed trial.
Individual Clients, though initially indignant at finding themselves embroiled in a lawsuit, may not share their lawyer's confidence/optimism regarding the probable outcomes of trial. A client might, more understandably, fear the risks associated with the possibility of an adverse verdict at trial and also have practical concerns about the time that would be required away from their own income-generating work should mediation fail and trial become necessary.
The Claims Professional may have privately determined that, although the liability exposure and anticipated costs for defending the case are substantial, there are grave doubts as to whether there is any applicable coverage available for the insured under the policy in question. (This could arise out of a myriad of factors, again hypothetically speaking, there may have been a customized endorsement, allegedly initialed by the insured, which excludes the project in question from the insurance policy.) To make matters worse, the claims professional may have just inherited this file from a previous colleague who failed to send the insured a 'reservation of rights letter’ in a timely fashion. A failure to settle the case through mediation could expose the insured to an adverse verdict and, hence, to uncovered damages, which, in turn, could give rise to a bad faith lawsuit against the insurance carrier (to which the insured's policy limits would not apply).
The Expert may be uncomfortable about testifying at trial because of forensic evidence that seems to reveal that much of the claimed damages arise out of the questionable execution of his client's ‘work-product’ on top of a previous subcontractor’s poorly executed work which, arguably, should have been readily apparent.
In Sum
It is almost inevitable that most parties in factually complex lawsuits will have some variety of similar, if not identical, problems internal to the machinations of their own team’s confidential evaluation. How creatively the mediator works with the team members of each party to assist in the calm and creative circumnavigation of internal conflicts will largely determine the success of the remaining mediation.
The Relevance and Importance of ‘Process Literacy’
'Process Literacy' in the Context of Mediation refers to the capacity of a Dispute Resolution Specialist to Intervene in non-productive exchanges - through the use of Preventions or Interventions - to steer parties clear of the commonplace - yet compelling - antagonisms that frequent high-charged negotiations.
One Example of a ‘Prevention’ can be observed when a seasoned mediator instantaneously orchestrates the seating arrangement between disputing parties as they file into a conference room for a mediation’s initial joint session.
It is common wisdom, in the majority of cases, that key representative should be seated directly across from one another so that each party's presentation can readily heard and understood (in commercial mediations this would typically be opposing counse, accompanied by their principals, Ins. Reps. and, or Experts).
If a mediator doesn't prevent parties from seating themselves "randomly," then it’s quite possible that key players will situate themselves as far apart from their counterparts as possible. When this is allowed to occur, those spokespersons may reflexively slip into a Raised-Voice-Speech-Making-Mode simply in order to overcome their physical distance from one another. When one person starts speaking loudly and emphatically, if only to project their voice, it can instantly provoke a similar reflex from a counterpart who may, in turn, misinterpret an oratorical style as being ‘arrogant,’ ‘presumptuous’ or ‘high-handed’…which then can transform a respectful or even conciliatory exchange into one that is strident and devolves into a ‘hostile a speech-making competition.’ If that ‘process-mishap’ is not prevented, it can set a troubling “tone” for the remainder of the day’s mediation procedure.
By way of contrast, when a mediator tactfully deflects a heated confrontation that has erupted between opposing counsel or parties, you are witness to an “intervention.”
One such example can be seen when opposing counsel are observed to repeat their respective positions, each time, with an marked increase in volume. In such a circumstance the intensity of an exchange may warrant the mediator’s intervention - which might take the following form:
"Counsel, I’m going to assert mediator’s prerogative here and interrupt you both for a moment just to see if I have grasped the gist of your respective positions”...
“Frank, you are convinced that opposing counsel is fully aware that the referenced documentation was sent and
received....”
And
“Sam, it's your contention that, even if the referenced documents were received, they were never intended as
‘a green-light’ or a confirmation of…
is that correct? Thanks gentlemen, I got it! Let’s move on now… “
Thus, by employing this intervention strategy, each party is obliged to pause in their escalation, regain a modicum of self-control while receiving specific validation that each point of view being expressed is fully understood by the mediator.
Possessing process expertise can enable a practitioner to utilize process tools like Re-Framing when intractable substantive disagreements emerge between parties creating what seem to be insurmountable impasses. When such deadlocks occur it can be helpful to identify a possible ‘process’ solution.' For example: when opposing counsel vehemently disagree publically as to who is 'factually correct,' they may find themselves without any options for a graceful retreat in the presence of their respective clients (a process problem). What began as a substantive disagreement regarding, say, applicable insurance coverage, quickly mutates into a process problem. This impasse can stall the exploration of alternate ways to suspend 'disagreement' on the substantive issue(s) (a process problem) and still pursue a resolution of the dispute (the substantive one).
Employing an intervention strategy such as Re-Framing can serve to shift the focus away from the issue of who's 'right' (the substantive issue) and then (through a series of confidential caucuses) enlist parties to explore: alternate settlement strategies that might be acceptable (a process solution).
The key process intervention here is to temporarily neutralize or ‘shelve’ the debate on the legal issues so that the parties can be re-focused on how a resolution might be achieved. A mediator might pull each attorney aside and say something to the effect of:
"Counsel, recognizing that it appears that there isn’t any Black Letter Law that opposing counsel is going to accept as dispositive here, let me ask you: Is there any other approach that we might 'test fly' for achieving settlement that doesn't require your agreement on the coverage issue here? Some alternate approach that hasn’t yet been explored?"
Thus, by moving the focus from the legal debate to an exploration of alternate settlement strategies, the mediator provides counsel and parties with the (process) opportunity to gracefully shift focus, without backing down and 'losing face.'
The capacity to constructively re-frame substantive problems into process ones is, perhaps, the most sublime art of the process-literate mediator.
The Relevance and Importance of ‘Emotional literacy’ (*1)
Emotional literacy refers to the skill-set that enables a practitioner to recognize and constructively respond to emergent problematic negotiation behaviors (spontaneous inter-party flare-ups that can adversely impact productive outcomes during extended negotiations).
The acquired awareness that is intended here by the use of the term ‘emotional literacy’ (See therapist and author Claude Steiner-*1 ) is rarely simply the by-product of any one specific or traditional course of study in human behavior, Sociology, Psychology or Psychotherapy. On the most fundamental level, ‘emotional literacy’ is a perceptual awareness and 'tool' that evolves through the gritty imposition of both professional and real-life-experiences. Properly harnessed, these experiences can equip a practitioner with the tools to recognize and de-escalate the emergence of those ‘Fight or Flight’ responses that defeat the functioning of sound judgment in charged transactions. Understanding how personal drives and motivations impact individual and group dynamics are some of the serial parts that comprise the complex awareness, Steiner calls 'Emotional Literacy.’
An ADR professional’s ability to accurately recognize the significance of both verbal and non-verbal behaviors (as exhibited by word-choice, voice modulation, syntax organization and body-language) – becomes a valuable tool for assisting disputants in the de-escalation of non-productive transactions. Notwithstanding the high level of formal education, discipline and training that most mediation participants can boast, it is all too common that mis-guided negotiation behaviors can quickly devolve into the street Fight or Flight tactics learned in response to the sibling rivalries of one's formative years:
‘One logical step, to honor my years of professional training, and two irrational responses that reveal how I internalized the behavior (the alcoholism, rage, bullying ) of my father, mother, uncle or siblings.’
Importantly, emotional and process literacy skills must be wielded with extreme caution and always based on an assumption of complete respect for each individual. A mediator who can artfully employ emotional literacy skills stands a better chance at successfuly intervening when disputants begin to exhibit non-productive behaviors.
Working with Individual Modes of Transaction
Every individual has their own unique and complex configuration of specialized responses that are evoked more or less automatically by each distinct situation. In addition, simply stated, each individual has primary, secondary and tertiary strategies for securing themselves in the complex world of social interactions. The essential goal of each individual’s strategy is to firmly establish a specific circle of comfort from which one derives a sense of personal certainty (or safety).
Studies have revealed that people generally evidence one (of four) primary ‘Transactional Needs’ when engaging with one another:
1. The Need to be in a Position of Power
2. The Need to be in a Position of Control
3. The Need for Recognition or
4. The Need for Approval.
The ability to Intuit and retrofit a problem-solving process to accommodate individual transactional needs is an essential tool for the achievement of both successful and a durable resoutions.
Additionally, every human being seems to process information through distinctive anatomical/ psychological "lead systems" or receptors - e.g. eidetic, auditory or kinesthetic: I see, I hear, I feel). According to past research conducted by psychologists (e.g. see "Frogs into Princes: Neuro-linguistic Programming," by Richard Bandler) people utilize ‘lead and backup systems’ that combine receptors - such as people who are excellent 'spellers' tend to learn ‘visually’ and then check the accuracy of what they 'see' ‘kinesthetically’ ("that looks correct and feels right"). Arguments wherein one party may be heard to say: "You just don’t hear a word that I'm saying!" and the retort; "Don't you see that you’re missing the big picture?" demonstrate that people are pre-disposed to imagine or process information and emotions through very distinctive modalities. The point here is that there is a virtual cornucopia of factors that manifest themselves in multi-party processes.
It is the view of this author that a practitioner's skill level in the disciplines of
both process and emotional literacy has a proportional impact on the success
of a mediation's outcome.
For those whose careers in commercial mediation began with its initial introduction more than three decades past, the ever-accelerating merry-go-round of innovation has provided a colorful, if sometimes, baffling spectacle. While it is impossible to accurately predict what forms ADR may take, in the civil arenas of the future, it is important that consumers continue to scrutinize both mediation and mediators to assess what the profession has learned and where it is headed. On the question of whether adequate protections are already in place against the possibility of ADR abuses, either from professional ineptitude or over aggressive entrepreneurship, the jury is still out. What is clear is that the future foundations of an expedited justice system must be securely anchored in the bedrock of our voluntary democratic traditions.
As ADR professionals we must creatively and responsibly shape the procedural landscape on which we plan to resolve the disputes of today in the venues of tomorrow.
(*1) -See Author Claude Steiner's: ‘Achieving Emotional Literacy’ -Bloomsbury Publishing