The “X”Factor In Being A Successful Mediator

How does a mediator show friendliness, empathy and caring in the midst of a contentious mediation? One way is to create a space where connection can develop between the mediator and the parties (and their counsel), beyond a mere discussion of disputed facts and legal theories. In commercial mediations, in-person meetings with each side days before the scheduled joint session can serve this purpose. Such meetings can also quell anxiety among parties new to the process and provide some cheerleading opportunities for the mediator to create positive expectations.. In my view these pre-session private meetings don’t violate the ethical standard of the mediator’s appearance of neutrality, since all concerned parties are equally treated and give their consent in advance to pre-joint session meetings. The AAA Commercial Mediation Procedures specifically permit such contacts. Not that such pre-session meetings have to be with only one party — one well-known commercial mediator often takes contentious parties to dinner on the eve of a major mediation, without their respective counsel, the only rule being that the subject of the dispute in mediation is not to be discussed.

If pre-joint session meetings aren’t possible or permitted by the agreed or imposed protocol, the mediator can consciously use his introduction to the process to share tactfully a few true personal details (where he grew up, true passion for gardening, golf, baseball, etc), with the aim of humanizing the mediator to the parties and perhaps even finding a responsive chord. Taking a break over coffee or tea (recent academic studies indicate that the warmth of a cup of hot beverage in the hand can subconsciously influence the holder to be more accepting of others!), offers opportunities to talk about something to which the party can relate. The mediator needs to be open to opportunities as they appear. Christopher Moore relates the difficulty of building rapport with a party on the telephone until the party asked about the current weather in Colorado. Using open-ended questions Moore discovered they each enjoyed snow camping, which began the establishment of rapport. Moore, The Mediation Process, 3rd ed. (Jossey Bass, 2003), p. 94. Jimmy Carter orchestrated the sharing of pictures of each other’s grandchildren with Anwar Sadat and Menachim Begin at a critical moment at Camp David to transform the mood of the negotiation. One former mentor of mine adroitly uses pertinent recollections of her Jamaican grandmother’s folk wisdom to bring both humor and her humanity into the room.

The “X” factor ? The most important skill to demonstrate to become a great mediator is not really a “skill” at all—it is to be yourself. The parties will feel comfortable with your vulnerability and sense that you are present to them and care about their concerns. Not only will that enhance the experience for all concerned, but that trust and rapport will likely translate to a higher comittment of the parties to stay with the process if and when progress stalls in the course of the mediation.