Can you share a memorable mediation experience?

Every mediation provides a different and unusual set of challenges.  That being said, there was one mediation where I was co-mediating the case.  The parties were not budging from their demands and offers, which were equally outside the reasonable realm.  They were all completely stuck in their monetary positions and not very shy about saying so.  The co-mediator felt that further efforts to mediate would be useless and left the mediation. I sensed that the parties needed something to permit them to make moves that would ultimately settle the case.  I would not, and did not, give up. I continued to talk to each side, sometimes gently (and sometimes not so gently) looking for that key piece of information that they needed to justify a settlement. Finally, I dislodged each of them from their stated last and final offer/demand and settled the case.  The takeaway from my story is if there is even the smallest chance of resolution, I do not give up because I believe in negotiated resolutions to cases. 

What qualities do you believe are essential for a mediator?

I believe that a good mediator needs to have the ability to listen to what the parties are saying and stay focused, not on who is right or likely to win the case, but on what the parties need to settle the case.  Additionally, a good mediator has to be able to show empathy and sympathy for each side’s position. If the mediator cannot connect with the parties and their lawyers, then the chances of a successful mediation are significantly lessened.  Last, the mediator needs to have a tenacity for settling cases and never give up until there is no other choice.  This tenacity requires a patience component that allows the mediator to wait for the right moments to make a comment or to switch the conversation so that the parties realize that “winning” the mediation is not the goal, settlement of the case without the need for continuing the dispute is the goal of mediation. 

What do you think is the most common misconception people have about the mediation process?

Many attorneys believe that it is important to keep their best arguments hidden, even during a mediation, so they can use such arguments later to win the case. In fact, it is the little tidbits of good argument that usually assist the mediator with resolving the disputes.  If the mediator knows the true arguments that each side believes will help them win the case (both factual and legal), the mediator can utilize that information to try and resolve the case without necessarily disclosing the specific argument. Essentially, the more tools that a mediator has to take to the other side, the more likely a mediation will be successful.