We occasionally receive calls from people who want to “interview” us as mediators. These people have usually been through a mediation and are angry or suspect because of what occurred at their prior mediation. We often hear that the mediator openly favored one side or that the mediator took over the negotiation and tried to decide the case with the attorneys’ approval. Having participated in many mediations as an attorney I could count on one hand the mediators I thought were worth their salt, that is, had learned the trade and spent time and energy unearthing interests and determining whether a negotiated resolution was in fact a better resolution than going to trial.
One of my biggest pet peeves as a lawyer was having other lawyers suggest certain mediators to me because they “always got the deal done.” A red flag immediately went up that the mediator was in the lawyer’s pocket and that the mediator would be banging on my client and me the entire process. I learned quickly that those mediators who were known to “settle all their cases” were just that….people who forced a mediation to settle usually leaving one or both parties compromised and unhappy. As a lawyer, most of the time – not all of the time – those mediations ended up with my client and me walking out. As a mediator, I cringe when prospective attorneys or people ask me how many cases we have settled. Mediators who settle a lot of cases can often be terrible mediators. Cary and I happen to negotiate successful resolutions often because we come in with no expectations of “settling.” We come in looking to examine interests and needs therefore to look for and expect emotions, to hear from the parties and lawyers, encourage joint sessions, be creative, satisfy information requests to the best extent possible, let the parties negotiate, keep negotiations going, and know that most cases are about something other than money.
Cary and I love what we do because it is more than a job to us. We spend a great deal of time learning our trade and continuing to learn from such a variety of sources. This is a people business and the end result has nothing to do with Cary and me.
Check out this wonderful article that outlines just how much “settlement” is not the goal of mediation.