Mediation is a mix of art and science. In parallel, a mediator shall possess both the aptitude as well as the acquired knowledge and developed skills. Regardless if one fully agrees with the notion that “mediation is as good as the mediator” undoubtedly the first major – or perhaps the most important – task for the parties to the dispute is to select not just any mediator, but a “good* mediator”.
The big question is: what are these traits that fulfil the criteria and make a good mediator?
Our exploration is guided by the quest for the most desirable features as sought and wished for by the characters of Tin Man, Scarecrow, Cowardly Lion and Dorothy from the Wizard of Oz by L. Frank Baum.
‘I shall take the heart,' returned the Tin Man, 'for brains do not make one happy, and happiness is the best thing in the world’.
In order to arrive at the settlement, mediators must earn and maintain the respect and trust of the parties. Many reports point to rapport as the key to success of mediation. It encompasses emotional intelligence which requires the ability to empathise and display understanding – by listening carefully, identifying the issues at stake and underlying emotions, as well as addressing them patiently and tactfully. It is also crucial that mediators display optimism and a friendly sense of humour, which keep the tensions at bay and ease some difficulties of the arduous dispute resolution process.
‘If you only had brain in your head you would be as good a man as any of them, and a better man than some of them. Brains are the only things worth having in this world, no matter whether one is a crow or a man.’
Parties want their mediators to quickly grasp and understand the dynamics, complexities and the true issues of their dispute. This requires alertness for clues. Further, mediators shall master analytical skills in order to act fast and appropriately throughout the mediation. In the exploration phase – thinking and planning ahead where the questions might lead. In the bargaining phase – to point out the risks and help reality-test proposed solutions. In this process a good mediator is always objective and maintains calm and self-control.
‘Why, anybody can have a brain. That's a very mediocre commodity. Every pusillanimous creature that crawls on the earth or slinks through slimy seas has a brain. Back where I come from, we have universities, seats of great learning, where men go to become great thinkers. And when they come out, they think deep thoughts and with no more brains than you have. But they have one thing you haven't got: a diploma.’
Mediators must be properly trained, most frequently this will be attested by accreditation of a reputable mediation training provider. Apart from being an expert mediator the parties might wish for their mediator to be an expert in the field - with substantive knowledge pertaining to the specific issues in dispute.
‘Experience is the only thing that brings knowledge, and the longer you are on earth the more experience you are sure to get.’
A few measures of experience, a crucial factor for effective mediation, might be the track record of a mediator accompanied by the references and recommendations from previous clients or peers. Frequently the credibility will already stem from practising as a member of a well-known and respected chambers or institution, where a mediator might be enlisted. This shall also safeguard that the appointed mediator is professional and knowledgeable.
‘There is no living thing that is not afraid when it faces danger. The true courage is in facing danger when you are afraid.’
To properly fulfil the role of guiding the parties towards the settlement requires a fair dose of open-mindedness, curiosity and creativity in thinking outside the box. This shall be aligned with a tenacity of purpose – displaying both perseverance and initiative, yet knowing when to back off. The golden mean between being bold and overly cautious is secured by work ethics which provide high moral standards and self-respect ensuring that a good mediator will be able to lead the parties and take responsibility. Although self-confident, a superior mediator shall also have the humble part, allowing for his/her growth and development.
Last but not least and the most importantly - a good mediator is an effective manager of the dispute resolution process. Just like the leader of the adventures through the wonderful Oz, Dorothy. As this story shows, Dorothy did not lose track of the purpose of returning home, just like the good mediator does not drift away from the goal of the settlement, despite the adversities, staying calm, positive and focused, which allows to motivate the parties to work harder. Therefore ideally, a superior mediator, by asking the right questions, listening carefully and probing will help the parties discover the solution which lies in their hands, although frequently hidden. Hence the most precious mediation lesson, just as the Oz adventure proved for all its participants, is that to find the power (to settle) one does not always have to dream or look afar (to the court). Let’s not forget, taking wisdom from young Dorothy - ‘… if I ever go looking for my heart’s desire again, I shouldn’t look further than my own backyard.’
The quotes come from the Wizard of Oz by L. Frank Baum.
*The term “good” is used bearing in mind its many intangible aspects and features open to discussion. Therefore the account aims to presents some characteristics typically considered desirable.
Ps. If you are wondering where to find this coveted "good mediator” who ticks most of the boxes on the wish list - stay tuned. In my next blog we will also present a few tips on how to preliminarily assess and choose a good mediator.
Sekretariat Generalny ICC Poland
Biuro Związku Banków Polskich
ul. Leona Kruczkowskiego 8