Arbitration & Mediation

What, exactly, does the mediator do? Part Deux.

By Christopher Annunziata

A few days ago, I posted the somewhat rhetorical question, ?What, exactly, does the mediator do?? It was really meant as a comment on Tammy Lenski?s post, ?Mediation in the mainstream: the problem of observability.?

I realized, however, that some people might actually wonder what mediators really do. I believe that the common misperception that mediators don?t really ?do? anything lies in the fact mediators do not dictate, instruct, mandate, or order the parties to do anything.

Litigants choose mediation for a variety of reasons, but most in the ADR community believe mediation works because it provides the litigants their last and best opportunity to take control of the outcome of their dispute. ADR professionals will tell you that it provides litigants with a sense of autonomy, empowerment, or control; that mediation is all about self-determination. The parties agree to a solution because they become involved in the process. They are asked their opinion. The get to provide ideas, suggestions, and alternatives. Parties need to feel that they reached the solution themselves.

So how exactly do mediators help parties assess the perceived strengths and weaknesses of their positions, examine their needs and interests, discuss settlement options, and ultimately (hopefully) reach a solution?

Good mediators ask the right questions . . . which is much harder than it sounds.

• The mediator may ask questions about the case that the parties have been ignoring;
• The mediator may explore the true causes of the dispute;
• The mediator may act as Devil?s Advocate;
• The mediator may ask the parties to make tough decisions they have been avoiding;
• The mediator may have to get the parties away from tangential issues and focus on the heart of the matter; and
• The mediator may have to control heated emotions

. . . all without making either party feel like the mediator is taking sides.

As British philosopher, mathematician and Nobel Laureate Bertrand Russell once said, ?The greatest challenge to any thinker is stating the problem in a way that will allow a solution.?

Full post as published by CKA Mediation and Arbitration Services Blog on October 24, 2008 (boomark / email).