What It Takes to Mediate
By Geoff Drucker
Geoff Drucker teaches mediation and negotiation at George Washington University Law School and George Mason University and mediates, trains, and consults with The McCammon Group in Washington, D.C. He can be contacted at GDrucker@mccammongroup.com.
Part 1 in a 2-part series. Next month: “Mediation Advocacy: The View from Across the Table”
The paradox of lawyering is that to do it well you have to be able to see all sides of an argument, but your job is to explain why only one side makes sense. Mediators help litigants develop a broader and more balanced view of their dispute and craft solutions all can live with. No wonder many lawyers enjoy stepping into this neutral role. Want to join the club? Start with assessing your career goals and personal strengths.
Why do you want to mediate?
• For an interesting challenge?
• For a break from the daily grind of zealously advocating one point of view?
• For a career change?
• To enhance your communication and conflict resolution skills?
• You got it confused with meditation?
The clearer the picture you have of what you want, the easier it is to figure out how to pursue it. If you are uncertain about your goals, determine what you need to learn or experience in order to clarify them.
Can you think like a mediator?
Perhaps the greatest value mediators can add to a negotiation is their mindset: warmth and humor, optimism and persistence, open-mindedness, problem-solving skills, and creativity. Mediators help parties think expansively about options for achieving goals and interests. They also help parties assess options objectively. This is called reality testing. It means probing all sides and elements of the key issues. Ask yourself the following questions to help decide whether mediation is right for you:
• Can you remain neutral about how a contested matter is discussed and resolved?
• Do you have the maturity, life experience, and outlook to empathize with people who have very different backgrounds, personalities, and points of view?
• Can you remain calm, cool, and collected in an emotionally charged atmosphere?
• For the types of cases you wish to mediate, do you have the degree of subject-matter expertise that the parties require?
Many first-rate lawyers with successful careers may not possess the characteristics and skills necessary to mediate.
Where do you start?
Unless you have outstanding credentials or stellar contacts, as a new attorney you will find it very hard to break into the private mediation market. And bear in mind that very few lawyers who can compete in this market mediate full time because it takes a large volume of cases to keep busy. Teams of litigators may rack up hundreds or thousands of billable hours on a case that a mediator helps resolve in ten or twenty billable hours.
More realistic options are court-sponsored mediation programs, community mediation centers, and local, state, and federal government programs for resolving administrative cases. Many advocacy groups (e.g., for people with physical and mental disabilities, special education needs, the elderly, and victims of domestic abuse) know about local mediation programs that are accessible to their constituents. Religious programs on peace-building and justice are another fertile source of opportunities and leads. Academic programs in alternative dispute resolution or conflict resolution should have contact information for local mediation providers.
Some mediation programs will train and mentor you in exchange for a commitment to mediate a certain number of cases or be available to mediate for a specified period of time. The better funded programs pay a stipend per case.
Since the supply of available mediators has expanded greatly in recent years, many programs now require you to obtain training elsewhere. An expensive CLE or commercial course is unnecessary. Many community mediation centers, university conflict resolution programs, and religious organizations provide high-quality training at modest prices. Courses typically last twenty or forty hours, and the best ones teach primarily through role plays. Look for classes with a small trainer-to-trainee ratio.
From your training program or other contacts, seek an experienced mediator to mentor you. Lawyers typically learn to try cases by second-chairing. Mediators learn by co-mediating. Some training courses offer co-mediation opportunities as a follow up. If an attorney at your firm or agency mediates, ask if you can tag along as an observer. After one or two observations, you should be ready to play a progressively more active role.
If you want people to think of you as a mediator, start walking the walk now. Apply creative problem-solving skills in your everyday practice of law—and life. Will this help you become a mediator? Maybe. Will it make you a better lawyer? Definitely.
• Creative Problem Solver’s Handbook for Negotiators and Mediators, Vols. One (PC# 4740060) and Two (PC # 4740061). 2005. Section of Dispute Resolution.
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