Who Makes the Best Mediator?

-I think the best mediator is an older person since they have so much life experience and many are wise.

-I think the best mediator is an attorney. They have been trained to follow the facts and resolve problems.

-I believe that the best mediators have a social work or psychology background. This allows them to explore the underlying motives.

Introduction

For fifteen years, I traveled the country representing the American Bar Association (ABA) Dispute Resolution Initiative. I helped start scores of community and court mediation programs. I trained thousands of mediators. At one point in time, the ABA played a role in almost all of the mediation programs in Oklahoma, Connecticut, and North Carolina.

There was always one dominant question: Who makes the best mediators?

I would explore this question with hundreds of mediation leaders. All of them had a quick response: Based on my experience the best mediator is a male, attorney, 5’10 ½”, from Ohio, graduate of a small liberal arts college, former prosecutor, born a middle child, etc.

Of course, I am describing myself and that is exactly what the mediation leaders would describe; that is, themselves.

Five Important Mediator Traits

The Texas law firm of Fraser, Wilson & Bryan, P.C. outlines five important mediator characteristics.

(The three firm partners, Carey Fraser, Kimberly Pack Wilson, and Amy P. Bryan have been practicing law in Stephenville, TX since they began their careers.)

• Trustworthiness: Ability to ensure confidentiality and fairness.

• Approachability: Incorporates having emotional intelligence including empathy and listening skills.

• Dedication: Symbolizes preparation and the willingness to go the extra mile.

• Perceptiveness: Sets the stage for creative problem solving with a solid grasp of the situation.

• Impartiality: This is the ability to control one’s feelings in order to assist all sides.

Traits of a Mediator

Northwest United States attorney Sam Imperati in his article in Mediate.com outlines these traits of a mediator based on his 36 years of practice.

• Alertness: Being aware of body language, attention to what is being said, and the voice tone

• Patience and Tact: This equates to rapport

• Credibility: Able to act consistently

• Objectivity and Self Control: Be dispassionate; not show weariness

• Adaptability: Be aware of differing personalities

• Appearance and Demeanor: Presents a professional and organized image

• Perseverance: Defined as tenacity

• Initiation: Firm grasp of situation through questioning skills

Connecting Traits to the Role/Style of the Mediator

Many would agree with the mediator traits outlined above.

A key question becomes, what is the role of the mediator?

Mediators can be viewed on a continuum. On one side might be the “transformative mediators” and on the other “evaluative mediators.”

Transformative mediators as used by the United States Postal Service emphasizes letting the parties have control and the mediators follow them. The goal is not necessarily settlement, but instead transforming the relationship or communication.

Evaluative mediators is where the mediator plays a major role in securing settlement. Some times in evaluative mediation, the parties spend little time together but instead the mediator shuttles back and forth.

Directive mediators play a major role in directing the process and leave the content to the parties.

Facilitative mediators play a major role in persuading the parties to negotiate.

Most mediators most likely fall into the facilitative or directive category. For 27 years, I have delivered mediation training to the Delaware Superior Court. Each training contains a module on MCI (Mediator Classification Index). This is self rating but most of the mediators consider themselves to be in the middle; that is, not evaluative and not transformative.

Mediators and Instruments

There are a variety of instruments used in mediation training. I have actually not heard whether these instruments are used in the selection of mediators.

I like the instruments not that I believe they are accurate but they are thought and discussion provoking.

Of course, any instrument is only as good as the information provided to it. I ask all of my students to complete these instruments in the role of a professional. One’s communication style may be very different with family and friends than being professional.

Conflict Styles Instrument

This instrument may be the most popular in mediation training. Dr. Ralph H. Kilman developed this instrument decades ago. By completing this instrument, one may discover where one is overusing or under-using one or more of the five conflict-handling modes:

• Collaborating

• Competing

• Compromising

• Accommodating

• Avoiding

Logic would say that those who score highest in “collaborating” might make better mediators than those who score highly in “avoiding” or “competing.”

The Myers-Briggs Type Indicator

The MB is the most popular and most complex personality measuring instrument. It outlines choices in 4 dichotomies:

• -Introversion or Extroversion

• Sensing or Intuition

• Thinking or Feeling

• Judging or Perceiving

The preferred method in each dichotomy becomes the “type.”

“A Mediator (INFP) is someone who possesses the Introverted, Intuitive, Feeling, and Prospecting personality traits. These rare personality types tend to be quiet, open-minded, and imaginative, and they apply a caring and creative approach to everything they do.

The INFP personality type is often described as an "idealist" or "mediator" personality. People with this kind of personality tend to be introverted, idealistic, creative and driven by high values.”

Communication-Behavior Styles Instrument

In most of my classes, I use a quick Communication Styles Instrument that focuses on two characteristics of communication style:

• Assertiveness

• Outward Warmth

There are four communication styles: Driver, Analytic, Amiable, and Expressive.

Logic might assume that the most effective mediator would fall into the “Expressive” quadrant. This style is high in assertiveness and outward warmth.

D.O.P.E. (Dove, Owl, Peacock, Eagle) Instrument/Test

In my law school Negotiation or Mediation classes, I like to glance at personality but not devote a lot of time to do. I do not use the Myers-Briggs, but instead use the simple and rather playful DOPE instrument.

Dove: The peaceful and friendly doves are persons of diplomacy and tact. Overall, they are people-oriented, sympathetic, supportive, and team players. They have good listening skills,

Owl: The wise and analytical Owls are the perfectionist, methodical, determined, well-organized and systematic lot.

Peacock: The showy and cheerful peacocks embody happiness and optimism. They love to talk, and they prefer the fast chase and spontaneity

Eagle: The bold and authoritative Eagles are typically dominant and decisive persons. They are typically thought of as Type-A people.

From this simple instrument, it becomes clear that of the personalities, most likely the dove personality is the one most suitable for mediators.

Comment: I have been surprised during the two years that I have been using this test that the law students fairly evenly divide among the four types.

Receptive to Mediation Training

Another ingredient to becoming an effective mediator is whether the person is open and receptive to mediation training. How do you tell this?

One way might be to reference the great research of social psychologists David Dunning and Justin Kruger.

Illusory Superiority: They found that approximately 30% of professionals fall into this category where they believe they are “better at” some skills than what they. They think they are great leaders or great listeners but others do not believe so.

Incompetency: They also discovered that 18% of professionals are not competent in their present jobs.

One might safely conclude that either of these categories would not be receptive to mediation training.

Comments from Experienced Mediators Throughout the Nation

Tulsa, Oklahoma, attorney mediator and former Executive Director the Dispute Resolution Center offers this:

1. Must be a good listener and able to accurately articulate back to the parties what they have said and what concerns them.

2. Being able to understand, follow, and require compliance with the mediation ground rules

3. Having enough experience with the subject matter that they can predict the likely litigation outcome

4. To determine up front what each party fears the most and then reach an agreement that the mediation won't go there.

(Simonson is now Director of Governmental Affairs at Tulsa County.)

Attorney Larry Freedman who is also Partner of Senatus ADR recommends:

I think subject matter expertise as to the issues in dispute helps.

Columbus, Ohio, attorney Terry Wheeler offers this comment:

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 like what you have concluded and would also agree with other who suggest some knowledge of the subject matter involved in the dispute and I would add: understanding of the role of interests, being aware of cultural factors that are important to the parties, making the discussion of BATNAs (best alternative to a negotiated agreement) practical and relevant to the parties, and relating well to the parties – and counsel, if any.

It seems so daunting to think about the “best” or “effective” mediator when the universe of potential disputes vary so greatly.

Washington, D.C. attorney and constructor mediator Judith Ittig contributes this comment:

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. The required skills would necessarily include:

• Having intellectual curiosity and strong interpersonal/people skills;

• Being an effective negotiator and communicator (i.e., open, honest, and tactful) able to provide constructive, timely suggestions for the benefit of the parties/project/issue; and

• Experience in the procedural aspects of dispute resolution processes.

She attributes this approach to CPR (Center for Public Resources).

What Do Parties Want from a Mediator?

This becomes an essential question.

• If the parties want a mediator with process skills mediation, then a general mediator would suffice.

• If the parties want the mediator to add subject matter expertise or legal expertise then the mediator needs to have both facilitation skills + that expertise.

• I have heard in some cases, the attorneys want the mediator to persuade their clients to settle. I always found this to be odd. I would consider this to be an attorney/client trust issue rather than a mediator issue.

Conclusion

I have concluded based on 45 years of mediation experiences and the available research that the answer is two parts:

• One, is being of a mediation temperament which means being open and nonjudgmental-some Instruments might assist in self-selection;

• Second, being open to mediation training in re the stages, communication skills, creativity, curiosity, and problem-solving. People who suffer from Illusory Superiority and Incompetent may not be receptive to mediation training.

Resources:

See Recommended Books under “Blogs” drop down menu. Clicking on any book will lead one to the discounted Amazon site.

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

5 Languages of Appreciation in the Workplace.

https://readingraphics.com/book-summary-the-5-languages-of-appreciation-in-the-workplace/

Getting Your Way Every Day.

https://www.google.com/search?q=Getting+Your+Way+Everyday&sxsrf