June 19, 2015 Articles

What Mediation Counsel Can Learn from the Boy Scouts of America

By Edmund J. Sikorski, Jr.

Most problems encountered in any endeavor come from lack of preparation. In the context of mediated case resolution, there are two separate but inter-related and inter-dependent preparation activities simultaneously in play. The first is counsel preparation. The second is client preparation. Failure to do either or both will result in almost certain disaster. Any attempt to "just wing it" will meet with the same consequences as Icarus.

Six Components of Counsel Preparation

First: Select a mediator with subject matter knowledge. The ABA Section of Dispute Resolution Task Force on Mediation Quality found that "to a very substantial degree users endorsed the importance of subject matter knowledge" (2008a, p. 9).

Depending on the nature of the case, for a mediator to come up with the right questions to facilitate resolution may well require that the mediator have significant experience in a particular field. Mediators with knowledge and experience in that area can not only provide those questions, but do so with the respect of the parties, based on their experience and expertise. A key hallmark of an effective mediator is the ability to hear what is not being said in order to cut through to the real motivating issues.

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