The Qualities of a Mediator

A mediator needs to develop several abilities: 1) attentiveness 2) ethics 3) emotional intelligence 4) subject matter expertise 5) decisiveness.

ATTENTIVENESS

The most important ability for a mediator is to pay attention. One eminent historian has written that our entire society suffers from attention deficit. [Niall Ferguson: Colossus, 2004] The plain and awful truth is that people do not pay attention. They live their lives in information overload, thinking about what to do or say next.

The word “attend” comes from the Latin attendere to bend to, notice. Attend has a number of meanings including 1) to be present at, 2) to accompany, 3) to take care of: minister to, devote one’s services to, 4) to wait upon, 5) to take charge of, 6) to listen to, 7) to apply oneself, 8) to pay attention: listen or watch attentively, 9) to be present.

If a mediator did literally nothing else but pay attention, the results would be remarkable.

Attention is an interesting quality. It can be fixed or floating. It can be focused or scattered. It can concentrate on one thing, or several things or many things. It can take in many things at once. A person who practices paying attention will find it is ability easily developed, and will greatly increase one’s awareness of what is going on.

Paying attention, properly understood, is not terribly hard work but on the contrary, has a light and airy quality. For example, a person absorbed in a book or a movie or a piece of music or a football game is paying close attention, but without a great deal of effort. It is easy to pay attention when one is interested in the subject matter.

The opposite of attention is distraction.

Chaos is complex; order is simple. Parties in conflict are entangled in complexity. The job of the mediator is disentanglement and simplicity.

“Don’t just do something; stand there.” Albert Camus

ETHICS

Ethical means: 1) pertaining to or dealing with morals or the principals of morality; pertaining to right and wrong in conduct. 2) In accordance with the rules or standards for right conduct or practice, especially if the standards of a profession: “it is not considered ethical for physicians to advertise.” Synonym: moral, upright, honest, righteous, virtuous, honorable. [Webster’s Dictionary]

The subject of ethics concerns itself with action, with right or wrong conduct. Perhaps many people may not think much about ethical implications, as such, as they go about their daily business, but in fact, every day contains choices and decisions that implicate oneself and other people. Maybe some are more conscious than others about consequences: nonetheless, all choices and decisions have consequences, and this is the subject of ethics.

The daily human preoccupation with ethics was never better expressed than by John Bunyan in the opening paragraph of his great work written in Bedford jail.

“And behold, I saw a man clothed with rags standing in a certain place, with his face from his own house, a book in his hand, and a great burden upon his back. I watched, and beheld him open the book and read therein, and as he read he wept and trembled, and not being longer able to contain, he brake out with a lamentable cry, saying: ‘What shall I do?'”

“Pilgrim’s Progress”

The question is not “who am I?” or “where have I come from?” or “why do I have to die?” or “what is my destiny?” but “what shall I do?” That question contains two qualities: (1) it refers to action, (2) it pertains to the future.

Because ethics concerns itself with right action, it pertains to the mediator who has a duty to be impartial as between the parties. Mediators are also called “neutrals”, but, although that word has stuck, it does not successfully describe the function of a mediator.

Neutral means: “(of a person or government) not taking part or giving assistance is a dispute or war between others.” It is a condition in which the third party stays out of the conflict, giving no help to either side. If a mediator were truly neutral, there would be little point in seeking her assistance; the parties could use a stuffed doll instead.

“The hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.” Martin Luther King, Jr.

“Impartial” is a different word with a different meaning. It means: “not partial or biased; fair; just: ‘an impartial judge.'” Yet a judge has the responsibility of judgment, of deciding in favor of one side; the judge may be impartial at the beginning of a case, but is entirely partial by the end. That is the function of a judge, but not a mediator. As used in connection with mediation, “impartiality” suggests full yet even-handed involvement, giving as much assistance as ethically possible to all sides in the conflict. Of course, the question always is: How much is ethically possible? That is why the distinction between evaluative and facilitative mediation is not merely a matter of style. A facilitative mediator has made the choice not to evaluate for the parties, while an evaluative mediator is willing to state an opinion. Such decisions necessarily involve considerations of right or wrong conduct in the context of mediation, that is to say, ethics.

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There is always a power imbalance between parties to a dispute. Does the mediator seek to address, and adjust, the power imbalance, by lending a bit more weight to the weaker side? Is such “tipping the scales” in favor of greater balance between the parties to be considered an exercise in partiality or impartiality? Sometimes one party appears with an attorney, the other without one; the person with the attorney is nearly always at an advantage. Should the mediator attempt to redress the power imbalance by helping the unrepresented party understand the legal ramifications of the situation, and the possible perils buried within it? Or is the correct action simply to recognize the power imbalance, and do nothing to prejudice the stronger position of one of the parties?

What if both parties are represented, one by an attorney who knows the file, the other by an attorney who is clearly unprepared? Should an experienced lend a hand to an inexperienced lawyer, or unrepresented party?

What if one attorney has overlooked something that will tilt the balance of the negotiation in favor of her client? What is the mediator’s responsibility?

Is impartiality even possible, particularly after meeting the disputants and hearing their respective stories? Does the mediator not naturally incline to one side? The Standards of Mediation Practice simply advise: “A mediator shall avoid conduct that gives the appearance of partiality to towards one of the parties.” How does one reconcile that standard with the duty of honesty and transparency? This is not the problem of bias or prejudice, which is conceptually simple because it is clearly not acceptable, but a question of ethical conduct, because after the two sides of a conflict are laid out, often it is plain that one side has the better of it; then should the mediator close her eyes to the obvious, or join the parties in denial, or simply dissemble, presenting the mask of an impartiality she does not feel? And if not, then what is she to do? This is the concern of ethics.

“Every word is a bias or an inclination” Nietsche

During the course of the mediation, a mediator may come to have a clear view of the respective merits of the parties’ positions; should she express her own views to the parties? Sometimes, parties do want such an evaluation from the mediator, which is why they may choose a retired judge, who is has spent years in the courtroom making such judgments, but what if the parties do not ask for an evaluation? What if one party is stubborn in insisting on a position that is wrong, unjust, and cannot possibly win? Should the mediator take that person to one side, privately, and explain to him the realities of the situation?

Mediation practice standards stress three essentials (1) impartiality (2) confidentiality (3) voluntary participation. What if one party desires to speak privately with the mediator, and then confesses to a crime? What if the confession involves an offence with a child? What is the mediator’s obligation (a) if she in an attorney (b) if she is a mental health provider (c) neither?

EMOTIONAL INTELLIGENCE

“Le Coeur a ses raisons que le raison ne comprend pas.” Blaise Pascal

The heart has its reasons that reason does not comprehend, Pascal’s famous aphorism, is the subject of the study of emotional intelligence.

The phrase “emotional intelligence” refers to an ability that is not much prized, and certainly not taught, in our society and educational systems, though it certainly should be. There are some excellent books on the subject. The phrase itself is something of a deliberate oxymoron, because the emotions are normally distinguished from the activity of the intelligence, but it expresses the need to relate empathetically to what is being communicated by another person, including the emotional drives underlying such communication.

The topic of “body language,” concerns itself with developing emotional intelligence, which is not an abstract or esoteric ability, but can easily be learned by taking the trouble closely to observe the behavior of other people. It helps the mediator to learn to relate empathetically to the parties, if they are to feel that they have truly been heard in expressing their grievances and needs, which is an essential step in the mediation process, because it leads to a willingness to negotiate a resolution.

In considering broad categories, any person is either more or less open, or more or less concealed. Some people are deliberately concealing themselves, trying to deceive, while others just do not know how to be more open. The latter are not concealing so much as protecting themselves. Some people pretend to be open, while in fact concealing a great deal. Everyone is on a continuum between being completely closed and completely open, and people may vary a great deal in the course of an hour as to how much they are willing to reveal, and how much they wish to conceal.

The mediator is not a therapist, and is not trying, generally speaking, to achieve a breakthrough in openness, except for those mediators who regard themselves as transformational, and their mediations are generally designed to take a good deal longer than a regular mediation. Where parties have come together to talk about their differences, and negotiate a solution, the mediator is only interested in achieving enough honest communication between them that they can achieve the result that they came for.

With emotion, it needs only to be remembered that emotion is a movement, and there are only four possible movements (1) movement forward; (2) movement backward; (3) movement splattered in all directions; (4) no movement at all. The emotional state in which the mediator would like the parties, is the emotion of “interest,” in which the parties are moving forward, interested in the situation they are in, and willing to work on resolving it.

SUBJECT MATTER EXPERTISE

Subject matter expertise is something that can be learned by a mediator, by which is meant expertise in the subject matter of the particular dispute, for example, construction, family relationships, childcare, commercial relationships, contracts, labor relations, environmental, governmental, tort, contract, and so on. Some parties, in choosing a mediator, deliberately seek some subject matter experience, and therefore, as a matter of marketing, it may be helpful for a mediator to acquire and therefore be able to advertise certain subject matter expertise.

However, it will be found that, once the mediator has mastered or become proficient in the craft of mediation, that the skills can be applied across a wide variety of subject matters. Some people always insist on choosing a retired judge, because judges have experience in the conduct of trials, even though a judge may know less than the attorneys – this is because attorneys nearly always specialize, whereas judges, once they are on the bench, take a random variety of cases that come before them.

The particular expertise of an experienced judge is in predicting the likely of a case. But if a mediator wishes to mediate in the area of, say international relations or environmental controversies, then in order to acquire business, it will probably be necessary to acquire some expertise in the subject matter, in order to be able to present credentials that will serve to enforce credibility.

DECISIVENESS

Decisiveness is essential in a mediator, because she cannot allow a mediation to wallow for any great length of time, without the parties becoming impatient, except in those relatively uncommon instances where the mediation is designed to be “transformational” and partakes of many of the qualities of therapy. The mediator has to decide, generally, who to speak to, when to speak to them, what to say to them, how much to allow them to say, because she has an obligation to create a momentum and keep it going. There is a purpose in view, and there is generally a time limit, and unless the parties feel they are making some progress, they are likely to be discouraged and the mediation may fail to achieve its purpose, which is to affect resolution.

In summary, these five qualities are skills that can be learned and developed. They are basic yet profound. Attentiveness is the foundation of communication skills, but must be combined with decisiveness because it is up to the mediator to make things happen. Action must happen but it must be right action, which is the subject of ethics. The mediator must develop sensitivities that are not accessible to pure reason, and this is the subject of emotional intelligence. The mediator must be able to talk the same language as the disputants, which means some subject matter expertise.

The scarcity of these qualities is why the mediation is happening at all. The mediator supplies what is missing to enable the disputants to settle their dispute and move on with their lives.

It has been said that people get attached to their problems and conflicts, but the reality of conflict was never better expressed than by General William Tecumseh Sherman: “War is hell,” and it is a service to people to help them find resolution.