A vital issue in the mediation arena is whether the most effective mediator is one who has command over the mediation process or one who has subject matter expertise (SME). Some would contend that an effective mediator has both. Others contend that a mediator who is expert at the process can mediate any type of dispute.
So, let’s explore some of the views. This question seems to be more prevalent among attorney mediators than general mediators.
Comments from Experienced Mediators:
I think the answer depends on the subject matter of the dispute being mediated. For instance, I mediate a lot of civil rights matters pending in federal court. For those matters, I think being an attorney with considerable federal court experience is a plus. Being an empathetic person able to understand and relate quickly with individuals on both sides of those types of disputes is even more important.
- Pamela C. Enslen, Kalamozoo, Michigan-based attorney (partner, Warner Norcross + Judd LLP and former Chair of ABA Section of Dispute Resolution)
I don’t see subject matter expertise as a sine qua non. Just as a skillfully effective trial attorney can handle litigation involving a wide range of subject matter, so can a skillful mediator. Mediators can “bone up” with sufficient familiarity on the facts of a particular matter to do their job well.
What is essential to my thinking is thorough knowledge in the processes of mediation. That is the sine qua non. Such experience is acquired both academically and through actual hard work on the firing line. That is paramount, in my humble opinion.
(Sine qua non or condicio sine qua non is an indispensable and essential action, condition, or ingredient.)
- Winston Haythe, retired attorney based in Washington, D.C.
I think that a certain level of understanding of the subject matter helps but mediator skills are the most important.
- Lynn Fraser, retired from FEC (Federal Elections Commission), now in Portland, Oregon
Yes, depending on complexity, the mediator needs to know enough so she can summarize, clean up, reflect, and ask good questions. Toward agreement, the mediator needs to know enough to see if the agreement makes sense
- Juliana Birkhoff, Ph.D, managing facilitator at Ag Innovations and mediator, Birkhoff and Associates
I have done over 100 construction mediations and 100 med mal cases without any prior substantive experience in either field. Just like litigators are primarily process skills and people, so are mediators, even if they are asked to evaluate, it is easy to assess a small piece of the claim on an impartial basis. The substantive skillset is necessary to create and maintain the transaction--issue recognition and risk management or allocation but not to assist when it ends or unravels since the issues re identified for you by the parties.
- Robert A. Creo, attorney, mediator, educator
I have mediated hundreds of cases in unfamiliar areas of practice. I also advise counsel of that limitation and encourage them to consider mediators with specific expertise. Most counsel believe that a 45-year lawyer like me with the benefit of detailed submissions can get up to speed and my process expertise is more important. I have successfully recommended co-mediation in these situations. Regardless, there are certain practice areas that I think are so specialized that I decline the assignment: tax, intellectual property come to mind. I do a good bit of referrals. I think the issue is NOT understanding the law but rather understanding what are the typical trades in these kinds of cases.
-Eric Galton, attorney mediator at Lakeside Mediation, Austin, Texas
I think subject matter expertise as to the issues in dispute helps.
- Larry Freedman, attorney and partner of Senatus ADR.
I think it may be impossible to identify the best mediator…and it may be only a little easier to identify the effective mediator. I agree with those who suggest some knowledge of the subject matter involved in the dispute.
- Terry Wheeler, attorney, mediator, and adjunct professor, Columbus, Ohio.
To command the respect of the parties, you must above all have expertise in the subject matter of the contract and dispute resolution experience as a mediator in the industry in which the project takes place.
- Judith Ittig, attorney and construction mediator, Washington, D.C.
I think it's way more important to be a process expert than a SME. The PROCESS is what it's all about in mediation, negotiation, or in any other area where you're being the intermediary and helping people reach an amicable solution. Certainly it would probably help to have some subject matter knowledge however, having that knowledge could also lead you to lean in one direction or the other and cloud your independent thinking. That's my take, I hope it's helpful.
- Bill Straubinger, owner, Results For Change and management consultant
In her article, Elinor Whitmore thinks that a case could be made for subject matter expertise for the mediator in such cases as intellectual property:
Another reason why it can be good for a mediator to have substantive expertise is that it may enhance the credibility of the mediator with the parties. The more the parties have trust and confidence in the mediator, the more the mediator can do to help the parties reach a settlement. In many circumstances, the mediator will gain credibility if the parties believe that the mediator is knowledgeable about the issues on which there is disagreement.
- Elinor Whitmore is a mediator and facilitator based in Ontario, Canada.
If the dispute focuses on complex industry practices, or some of the situations noted above, where bringing an outside mediator up to speed would hinder the process, then subject-matter expertise may be the first priority.
- Charles E. Rumbaugh is a full-time neutral with the AAA (American Arbitration Association (AAA) in California
In many cases, I have been presented with situations that did require me to have knowledge of certain things. But on virtually every occasion that this was the situation, I had been able to get that knowledge from the parties, the parties’ attorneys, or the parties’ experts or the expert reports.
- Jon Linden is an accredited professional mediator (APM) for civil/commercial mediation by the New Jersey Association of Professional Mediators.
My response to this question is no. I have mediated thousands of cases over the past 45 years. Some, of which I had knowledge of the subject matter, and others not. My subject matter expertise has never been needed. The parties take care of that. In some cases when I have had expertise, I had to be very careful that this expertise did not intrude into my neutrality or facilitation.
I believe that if one is operating in a directive, transformative, or facilitative mediative fashion, command of the process is the key and you can effectively mediate disputes of any type. They should approach mediation as a 50/50 proposition; that is, that 50% of the mediation success is the mediator’s control of the process and 50% of mediation success is based on active participation including substance of the parties.
Mediators are not representing the parties.
Mediators are not making decisions for the parties.
Mediators are not evaluating the case for the parties.
These mediators depend on the parties to contribute the substance, including the likely outcome of these cases in the courts of the jurisdiction.
If one is acting as an evaluative mediator then subject matter expertise may be valuable.
I sometimes wonder whether “evaluative mediation” is actually mediation. It seems more like another dispute resolution process of case evaluation.
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Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education
The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray
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