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What, exactly, does the mediator DO?

By Christopher Annunziata

I?ve been thinking about this issue for a while, toying with the idea of a post. I simply couldn?t think of an opening until I read Tammy Lenski?s post, ?Mediation in the mainstream: the problem of observability.?

Tammy writes that while she was prepping for her mediation class at Woodbury College, she read aloud to her husband an excerpt from Daniel Bowling and David Hoffman?s Bringing Peace into the Room which delved into the perceptions of the mediator from the perspective of the participants. In a nutshell, when the parties were asked what they actually observed the mediators doing, they responded:

?Opening the room, making coffee, and getting everyone introduced.?

Unfortunately, I think this is a common perception among mediation participants ? that the mediator is passive. I haven?t done any research studies but I think there are three possible explanations for this opinion:

First, many lay people are simply not familiar with mediation. They hear the words ?neutral? and ?facilitate?, and are told that a mediator doesn?t decide a case in favor of one party or another. They ask, ?Then what, exactly, does the mediator do??

Second, there really are some useless mediators out there. They do little else than greet the parties, offer coffee and walk around going, ?They?re at $X. Are you willing to make a counter offer? You know, litigation is risky. You might lose, and spend a lot of money getting there.? Since I frequently hear complaints from clients and colleagues about these ineffectual ?water carrier? and ?errand boy? mediators, I know this to be true to a certain extent.

I also know some very good mediators. So the explanation that Tammy puts forth is probably equally true. As Tammy puts it, ?When we?re good, when our work is seamless, and when we?re not strutting around to stroke our own egos, we and our contributions may be invisible.?

So, the question Tammy asks is, ?What do good mediators do about it??

Need we do anything? If you are a good mediator; if you provide value to the settlement process; if you manage the personalities, ask the tough questions, coax the right responses, can you really do anything else? Likely not.

I agree with Tammy that ?Credible observability doesn?t come from us talking about ourselves. It comes from others talking about our work and successes.? I?ve been fortunate to have some good lawyers say some nice things about me on my website and to others. It?s a hard road to hoe, but I think you must trust that when you do a good job, the parties and advocates will remember and will spread the word.

Full post as published by CKA Mediation and Arbitration Services Blog on October 07, 2008 (boomark / email).