The Value of Mediation Training

I find it surprising that sometimes people do not appreciate that mediation is an artform. There are some who hold the misguided view that mediation is simply another form of court-directed settlement conference. However, mediation is not a settlement conference. Rather, mediation is a specialized process designed to facilitate a resolution of the pending dispute between the parties by engaging those parties in the process so that they can come to a resolution that meets their individual needs. While both mediation and a settlement conference have their place in the litigation process, they are simply not the same.

How is mediation different than a settlement conference? The mediation process itself is a learning experience for the parties where they can drill down on a more fundamental level to the issues and disputes at hand; it is one in which, upon being educated as to the other side's case, business decisions can be made in order to resolve matters. Mediation is intended as a self-determined process, albeit with the guidance of the mediator. While a settlement conference may also resolve the matter and touch on some, if not all, of the issues at hand, it often does not and cannot do so with a deep dive into the issues. In a settlement conference, the judge simply cannot undertake the same analysis and level of involvement that a mediator can and does. This is especially true when the judge conducting the settlement conference could eventually become the trier of fact and the decider of law in the matter.

In order for a mediation to have a chance at being successful, the party serving as the mediator must be trained in the skillsets that are utilized in this process. There are multiple stages and facets to a mediation, which are utilized at varying points in time and may depend on the conflict at hand, as well as the temperament of the parties involved. For example, understanding the purpose and need for a joint caucus or when to call a private caucus is critical. These are distinct and separate constructs, and they each have their time and place and purpose in the mediation process. There are times when the mediator must evaluate whether the mediation in question even requires a joint session, as not every mediation does. Knowing when to call a joint session is something that comes from practice and experience. There are, in fact, times, after assessing the temperature of the parties at a particular time, that the potential for adverse interaction in a joint session could so derail the process that an experienced mediator will choose to forego a joint session. While I am ordinarily a proponent of a joint session,[1] I am not a slave to the process. Only with training can a mediator truly understand the purpose of the joint session and flag the times when it may be best to dispense with the same.

Moreover, understanding how to address the parties and their needs in private caucus is also a skillset. Given that mediation is not a settlement conference but rather a party-directed process wherein they need to be fully engaged and vested, a mediator cannot simply sit down and ask the parties what dollars they are looking for from the other side. Further, merely serving as a vessel for “shuttle diplomacy” and negotiation is not the point of the process, and in so doing you would be giving short shrift to both the needs of the parties and the integrity of the process.

It is also imperative that the mediator understand fully the manner in which the confidentiality of the exchanges in private caucus must be maintained and handled. This is necessary to not only ensure that the parties and their counsel trust you with the process, but to preserve the exchange and sharing of information during that private session. How private sessions are handled and managed is critical to ensuring that the parties share information with the mediator and, ideally, work with the mediator to eventually disclose and share the appropriate level of information with the other side. There are skills such as active listening, among others, that need to be learned and practiced so that the mediator becomes adept.

Additionally, while this is a facilitative process, at times it can also be evaluative in nature, and a trained mediator understands that they are not there to counsel the parties. Thus, no mediator should be advising parties on missed defenses or arguments or points of law. I was astonished once to hear someone who calls themselves a mediator state that they at times have so advised parties in this arena; to me, this reflects a lack of training in the process and flies in the face of what any well-trained mediator has learned. It also could undermine the integrity of the process.

Further — dare I say it at the risk of incurring the ire of litigators everywhere — not every litigator has the skillset to serve as an advocate in a mediation. This why at times there are attorneys who concentrate their practice in the art of being "settlement counsel." This does not mean that being a litigator and serving as an advocate are mutually exclusive; indeed, many litigators are adept at wearing multiple hats. However, too many litigators are simply unable to put away that hat and temper and redirect their typical posture for purposes of the mediation. In order to be an effective advocate in a mediation, you need to maintain a settlement-focused mindset for purposes of drafting mediation statements, engaging in settlement dialogue and the mediation process itself.[2]

For all of the foregoing reasons, training is imperative — not just for the mediator, but also for the advocates. Mediation is but one of many tools in an attorney's toolbox, and learning how to utilize those tools is something that comes from training and experience. Further, being a mediator is a skill that is honed and crafted. By way of example, while I have served as a mediator for almost 20 years in close to 50 different mediations, I continue to learn and educate myself in the process. I enhance my knowledge base by learning from each mediation that I handle: potentially another nuance or by enhancing a skill. I continually receive education and training from my mediations.

Finally, there are multiple levels of areas to learn about even beyond the basics. Recently, I took a course in micro-aggressions and in implicit bias. Although this is not the first time that I have spent time focusing on these areas, I see each course as another way to further enhance my skills when dealing with parties to a mediation. I personally see it as my obligation to the mediation process to continue to educate myself and refine my skills. This is no different than courses I take to further my core substantive knowledge in an area or to further develop my deposition or trial skillset with courses in this arena. Mediation requires ongoing training and education.

To that end, tune in next month for more information on the kind of training that should be considered in order to ensure that the skills you are developing either as a mediator, or for purposes of serving as an advocate in a mediation, are obtained from the right courses and the right professors.