MEDIATION AND MEDIATORS: EXPERIENCE MATTERS!
As a young lawyer, I frequently heard the phrase, “One should hire a young doctor and an old lawyer!” I suppose that, as a young lawyer, that was meant to put me in my place, at least somewhat. At that time, I obviously had a lot to learn and many years of law practice ahead of me. However, I think the “conventional wisdom” of that statement is that, a young doctor, just out of medical school, has just learned the latest and greatest in diseases, treatment of diseases and medical treatment, and is most capable at that time in applying this knowledge. A lawyer, on the other hand, just getting out law school has not had the opportunity to stand in front of juries and judges, take a position on behalf of a client, and be willing and able to back that position with knowledge and confidence.
A good mediator not only needs the technical skills of analyzing the legal and factual issues that might give rise to a dispute, the mediator also needs to be equipped with a history of life experiences both in and out of the courtroom. It is that history of life experiences that adds the “people skills” to the technical skills. The people skills come not only from advocating to a judge or jury, the people skills also come from years of assessing controversy, assessing common grounds, assessing not so common grounds, and advising clients on the best overall course of action when all of these things are taken into consideration.
The mediator takes the role of a neutral – that is, the mediator does not advocate for either side. The “solution” in the mediation is one that is owned by both parties, not the mediator. It is the mediator’s duty to assist the parties in finding that common solution. It is the experience level of the mediator that allows a mediator to effectively explore the possibilities of common ground in order to find that unique solution that meets the needs of all sides.
Thirty-five years of law practice, Board Certifications for most of that time in Civil Trial Law and Personal Injury Trial Law, many jury trials, many trials to the court, and the analysis of countless disputes and factual situations provides the background for the “people skills” part of being a successful mediator. That is where experience matters, and that is the “extra” that an experienced mediator can add to the process of finding a solution that can be owned by the parties to mediation.