I mediated many cases before ever having had any training, formal or otherwise, as a mediator. My impression of a good mediator before training was of someone who didn’t engage in any of the “touchy feely” stuff like joint sessions, interests of the parties or self-determination. A good mediator was forceful, got right to business and imposed his will on the parties if necessary to get the case resolved. A good mediator was judged by how successfully they got cases settled. That is what I expected from a mediator in my role as a lawyer participating in a mediation and that is how I would handle mediations as a mediator. If getting cases resolved was the measure of success then I was pretty successful. I felt good. It was all about me.
My eyes were opened in March of 2016 when I completed my formal mediation training. I learned the fundamental concepts of confidentiality and self-determination. I learned that a good mediator was a good listener. Most memorable was what occurred in one of the many role playing sessions during the training. It happened during a scenario that was closest to what I had been doing the past ten years – mediating a personal injury action. I was in my element and would “wow” everyone with my prowess and ability to get this case resolved.
During the opening joint session in this role play I asked the plaintiff wife a very pointed, personal question about the whereabouts of her husband. The role playing fact pattern had revealed his whereabouts – he had split from his wife earlier. I knew the answer and simply wanted to reinforce in her mind the impact this fact would have on her case. “So, why isn’t your husband here with you today ma’am?” I asked. The trained mediator moderating the exercise nearly flew out of his chair and stopped the entire scenario. I was confused. “Why in the world would you ask that question”?, he demanded. “Because I believed it to be important in getting this case resolved,” I replied in anger. “It’s not about you!”, he replied.
I will admit to being more than a little bit upset and embarrassed by the events as well as flustered for the balance of the role play. But this single incident over two years ago has stuck in my mind in every mediation I have handled since that time. This is not about me. Mediation is about the parties resolving their dispute in a manner that they come up with. My job as a mediator is not to forcefully impose my will in order to get the case resolved. My job is to listen to the parties and their wishes. My job is to protect the process as best I can to allow the parties an opportunity to be heard, have their interests considered and reach a result that they craft and can live with. None of this is about me. And my success as a mediator should not judged by the number of cases that “I get resolved”. This is not about me.
Most of the mediations that I handle involve parties that are represented by legal counsel. Many of the lawyers are impatient with the process and seem to view mediation like any other adversarial proceeding, allowing their egos to define their role as crucial to the mediation and without which the mediation would not exist. Sorry, but it’s not about you either.