I have been fortunate in the more than 25 years I have been mediating cases. I have met and worked with a great number of fine lawyers and laypeople and have learned about how people tend to think and what they want when in a dispute. I have improved. I have also learned how my professional relationship with counsel affects my ability to resolve disputes.
The process of selecting a mediator to help one’s client can be complicated. The advocate must not only locate and engage mediators competent in the general type of dispute at issue (i.e., litigated case, neighborhood, family law, etc.), but should strive to find mediators with whom the advocate feels comfortable and with whom the advocate shares a trusting relationship. Trust should not imply bias. Rather it only imbues the process with a higher level of communication and eliminates the “mating ritual” common in almost every personal and professional relationship. Once the advocate and mediator develop confidence in each other that neither is going to try to deceive the other, communication is easier. There is also non-verbal shorthand communication that takes place that can help the mediator communicate with the other side the real interests of the parties. The biggest factor, I propose, is once trust is established, the mediator and advocate tend to more freely express concerns and reality checks without the fear of alienating the other. Hopefully, at that point of the professional relationship, the advocate will feel assured that the mediator is doing her best to resolve the dispute with the best interests of all parties as the goal.
It is not a bad thing to become comfortable with your mediator or arbitrator as long as the advocate does not expect special consideration from the neutral. It is human nature to want to please those around us, but ADR professionals must also pursue the goal of fundamental fairness to all participants.
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