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Jeff Trueman: When searching for a mediator, look by listening

Jeff Trueman

Jeff Trueman

The private mediation market is flooded with people looking to break into the field. When law students ask me whether they can make a career in mediation, I tell them to become a well-respected judge for about a decade, retire, and then business will be much easier to generate without the need for advanced ADR training (the basic course is essential). Of course, that is not completely true: many senior lawyers are supplementing their practice or retirement plans with commercial mediation after decades of litigation advocacy.

Still, retired judges are often called to mediate many non-domestic litigated disputes. The rationale is usually based on the belief that a retired judge carries enough clout to “readjust” expectations on one side or another. This often entails “banging heads” until the parties agree to a compromise deal.

Many lawyers justify this one-dimensional strategy to clients and insurance companies because, if and when a dispute does not settle, they can claim to have hired “the best” or most knowledgeable legal subject matter expert. Who better to break the impasse in a litigated dispute than an expert in litigation? The answer may depend on whether the lawyers can see beyond the legal positions and discern the drivers of behavior such as grief, disrespect, a loss of opportunity, or a clash of personalities.

But before discussing the skills possessed by “gem” mediators – those who have fashioned pearls of wisdom through the grit of experience – consider the manner in which the mediator interacts with people. How well does the mediator listen?

Listening, not talking

Mediators who listen more than talk have a better grasp of the real issues at stake between the parties. Great listeners are great observers. They take in not only what people say, but how they express themselves through body language and action. By taking the time to gather information, great mediators create bargaining currency in the form of a rapport-building trust “account” with participants. Withdrawals from that account will be necessary later when concessions are needed. A mediator may rightly have a superb reputation before coming to the table, but the parties in a particular case may not trust the mediator if he or she fails to garner that trust and develop a rapport with the participants.

In other words, trust is earned through each personal interaction. It is not bestowed by way of title or status.

Generating movement

In an effort to persuade parties and counsel, retired judges often soft-pedal their experience as deciders of other peoples’ disputes. And many lawyers want retired judges to do just that – be the authority figure who can predict the outcome at trial so that the right participants are persuaded to compromise. Fortunately or unfortunately, parties in mediation are free to reject recommendations, no matter who offers them. Insurance adjusters, for example, often live and work in other jurisdictions and therefore have no relationship with or knowledge about the retired judge or senior lawyer. They have their own authority figures at the corporate office miles away.

Furthermore, the mediator’s qualifications will matter less to good negotiators who develop bargaining strategies in advance because their concessions hinge less on mediator status and more on whether the other side sends the right motivational signals.

Movement occurs for a variety of reasons. Some parties are frightened of and exhausted by extended and contentious litigation. At some point they realize they have no control over the outcome. Some lawyers generate movement by adopting a problem-solving approach to impasse and getting the most from the mediator.

Great mediators generate movement by assessing the underlying reasons for the impasse, evaluating – if they evaluate at all – very carefully, solving problems creatively, managing difficult conversations, and tailoring the process to fit the conflict. These skills have nothing to do with status or the law. The sort of experience that makes a good jurist or strong advocate does not necessarily make a good facilitator of negotiation.

The law is a narrow expression of what the parties really want: just compensation, accountability, recognition, security, protection of investments, access to loved ones, etc. By working with a mediator who goes beyond predicting legal outcomes, attorneys permit their clients to access the deeper, more significant opportunities afforded by mediation.

Jeff Trueman is a commercial mediator and directs Baltimore City Circuit Court’s Civil ADR program. He can be reached at jt@jefftrueman.com.