From the Mediation Matters Blog of Steve Mehta.
Recently, at the ABA convention for alternative dispute resolution, there was a discussion of the secrets to a mediator’s success. This reminded me that I had previously written an article on this issue in the Southern California Mediation Association Magazine citing to some of the research presented at the ABA. After having reviewed the article, the suggestions in that article remain valid today. As such, I am including that article for discussion. In another article, I will address some of the other research on this issue that arose out of the ABA conference.
Many people have suggested that once a mediator learns negotiation techniques that can help a party to make movements, such as the mediator’s proposal, that is all that is necessary to be a successful mediator. Many attorneys have also told me that they don’t feel the mediators should spend time “kibitzing” or “schmoozing” with the parties and that the mediation should just commence. Unfortunately, I believe that these people have missed a crucial understanding of the mediation process and what needs to be accomplished before a mediator can begin to effectively guide the parties to a resolution. In my opinion, there are three things that all mediators must be able to do, regardless of the type of mediation, in order to be successful at mediation. Those three things are the ability to develop trust and rapport with the parties, the ability to arrive at creative solutions and persistence.
I have always believed that the secret to a successful mediation is not the number of negotiation tools that the mediator uses, but instead something much more personal in nature. The secret to being a successful mediator lies inside the person. In fact, I have always acted on the assumption that my success as a mediator has not been from my knowledge of specific negotiating techniques; but instead, it has been based upon my ability to connect with the parties and the attorneys and to build a meaningful relationship in a short period of time. This belief was affirmed in an article in the Harvard Law School Negotiations Journal entitled, “The Secrets of Successful Mediators” by Professor Steven Goldberg.
Based on a study of thirty (30) experienced and successful mediators, Professor Goldberg concluded that the secret to being a successful mediator was their ability to develop a rapport and trust with the participants. The study asked the mediators to anonymously provide the reasons that they believed they were successful in mediation. Uniformly, the mediators responded that the secret to their success in mediation was the ability to develop and maintain rapport and trust. One participant anonymously wrote:
“I think the greatest and most useful skill I have is the ability to gain people’s trust. They come to believe that I will not lie or mislead them and that I am interested in reaching a settlement that works for them.”
Once we understand that trust and rapport is critical, we have to understand why it is such a critical function. According to the study by Professor Goldberg, the establishment of a rapport “encourages the parties to communicate more fully with the mediator, often providing her with the information she needs to help the parties craft a settlement.” Professor Goldberg cited to additional research in this area stating that “credibility-enhancing activities….serve a double useful purpose: not only do such activities give the mediators the credibility to offer suggestions designed to resolve the dispute, they may also create a climate where the parties trust the mediator, allowing the mediator to attempt relationship building between the parties…” However, these are not only reasons why rapport and trust are so crucial to effective mediators. Without gaining rapport and developing a relationship with the parties, the mediator will not be allowed into the inner world of the client. Instead, the mediator will be seen as a well-intentioned outsider who is trying to help. Often times, the parties will not allow the true reasons, solutions or problems to arise in the mediation until they feel comfortable that the mediator is “one of them.” This is not to say that the mediator has to become a party to the action. Instead, it does mean that the participants must feel as if the mediator has become one of them and that the mediator has their best interests at heart. Without this type of trust, regardless of the negotiators acumen, the mediator will be destined to fail in the times when the parties need him or her most: the difficult cases.
In my own experience, I have found that working with the parties to gain their trust has paid numerous dividends. In one mediation, I had worked extensively to develop the trust and confidence of the parties. The defendant had been leery about the mediation and didn’t want to be there. However, after several hours of showing that I cared about what would happen her if the case didn’t settle, she opened up to me and “spilled” her concerns about settlement. Based upon those concerns we were able to fashion a reasonable settlement. However, even at the end, she asked her attorney to go outside and then asked me whether it was a “fair” deal. Without having built the trust with the client, that settlement may not have occurred
But how do you create rapport and trust? You can’t just walk up and tell a person to believe in you. The fact is, as our parents have told us when we were kids, “actions speak louder than words.” If our words say please trust me, and our actions don’t, people will trust the actions.
First, and foremost, a mediator needs to care about the parties and their concerns. Although a mediator does not need to make the client’s problems his or hers, the mediator certainly needs to communicate both physically and verbally that he or she cares about the other person. Without this, rapport will never develop.
Unfortunately, the ability to care about someone cannot be taught. Fortunately, there are tools that can help make someone feel comfortable with you as a mediator. Some of these techniques are used by mediators on a regular basis such as listening carefully to each party’s needs and concerns; acknowledging the legitimacy of some of those concerns; and demonstrating a willingness to try to help with those concerns.
The above-mentioned skills to develop trust and rapport are well accepted and are often taught in mediation courses. Although these approaches are necessary and important, these skills alone do not fully allow a mediator to develop the personal rapport that is necessary. Frequently, the rapport is built not based upon your ability to be empathetic but your ability to demonstrate to the participants that you’re a human being that is similar to them. Researchers have found that when people believe that they are among friends and among people that are similar to them, they are more likely to accede to requests or to be convinced to change a particular position. As such, there are many ways to develop personal rapport with individuals in a mediation. These include the following:
Identifying common personal experiences;
These concepts can be applied throughout the mediation. However, it is very important to establish many of these areas of rapport early in the mediation and then to enforce those areas throughout the process.
Professor Goldberg’s research also indicated that although establishing rapport is probably the most critical factor in any successful mediation, nearly half of the mediators also stated that one of the keys to their success was their ability to “generate previously unconsidered or insufficiently considered settlement ideas.” In other words, their creativity was important. Any person can convey numbers back and forth; and anyone can help resolve a dispute when the parties were already willing to settle. But not anyone can settle the case where the parties want to settle, but just don’t know how without losing face. In those cases, creativity is sometimes the only thing preventing the parties from leaving the mediation setting.
One way to develop creativity is to focus on the underlying issues that are motivating the participants. Part of creativity also requires the mediator to let go of his or her fears of rejection. If one idea fails, the next one won’t. As exemplified by Thomas Edison, it took 9,999 failures to come up with the one success – the light bulb.
I often find creativity and the ability to think outside the box as being a critical tool. On one occasion, the parties were deadlocked in a case where each side accused the other of stealing personal property. I made a suggestion that I knew was going to be unworkable. The suggestion required each side to inspect the other’s property and for each item found that was on a list of stolen items, the party in possession of the property would pay a $1,000 to the other, regardless of the cost. Although the proposal was unacceptable, it kept the parties talking and eventually led to the parties agreeing to the value of each item. That small agreement then paved the way for the ultimate settlement once the parties realized that they were going to spend more on litigation than the items were collectively worth. Without the crazy proposed solution, there would have been no solution.
It is also important to note that creativity can be used not only to develop ideas for settlement, but it an also be used to identify areas where you can build rapport with the individuals.
Finally, the third most important characteristic of a successful mediator is the ability to be patient and tenacious. Professor Goldberg’s research reiterated the concept that successful mediators do not give up hope even when the participants have done so. Frequently, for successful mediators, the response “no deal” serves as a motivator for the mediator. It makes the mediator want to find a solution even more.
As noted by Professor Goldberg, some mediation skills cannot be taught. For example, you cannot teach someone to care or to be persistent. However, other skills can be taught. For example, active listening skills can be taught. As such, it is important for mediation educators to teach more of the skills related to the three essential traits.
Although these three factors have been found to be critical skills for all mediators, it is not to say that the other skills, such as the ability to move the parties closer together, negotiating techniques, or the ability to maintain the parties’ focus are not also important. These skills, taken with the essential traits can help a mediator develop a significant tool box that can be used in any mediation. Negotiating skills, along with the ability to develop rapport and be patient and persistent, can make the ordinary mediator into the superhero of mediation.
Originally published in the SCMA Magazine, September, 2005 by Steven G. Mehta