My Approach to Mediation 

Based on all the mediations I have done both as lawyer and mediator, I have distilled these few guidelines for myself.  I think they will be self evident in working with me.

1. Fully Prepared.

   The judgment, skill and experience which make me effective are not fully brought to bear if I don’t understand the facts and issues.  I am not shy about getting prepared.  I read mediation submissions carefully and typically call the lawyers for both sides to ask questions.  In appropriate cases, I meet with each lawyer and sometimes their clients.

2. “Professionally” Neutral.

   I understand that I am actually paid not to be on any side.  I want lawyers and clients to feel and trust my neutrality — just as much as my litigation clients felt and trusted that I was absolutely on their side.

3. Listen – Listen – Listen.

   The most important single skill of any neutral, especially a mediator, is to listen — to the lawyers, to the parties, to what is said as well as to what is not said — and to listen for the interests and attitudes of the lawyers and the parties.

4. Flexible on Process.

   Not all mediations can, or should, be handled the same way.  Decisions on how the process will flow can make the difference between success and failure.  I usually discuss the process in detail with the lawyers in advance, and if necessary have a conference call to come to a consensus.  Almost always, these discussions are a productive part of the whole process.  This is sometimes written about as “fitting the forum to the fuss.”

5. Direct and Honest — Not Timid.

   Just like trial lawyers, mediators are required to use different gears and skills to fit each case, and multiple situations within each case.  My way is to be direct and honest in whatever I say.  A great national level mediator I respect a lot puts it just right – he says being “aggressive” is not what is needed, but neither is it a place to be “timid.”

6. Honor Confidences.

   Mediation cannot work unless the lawyers and their clients trust the mediator to keep in confidence what is shared in confidence.  I take this seriously and deal with it explicitly in every mediation.

7. Patient, But Persistent.

   Real progress more often than not only comes at the end of the time allotted — plus some.  I try to schedule mediations so that my schedule never causes a mediation to terminate when progress is being made.  A substantial percentage of mediations resolve days, weeks or even longer after formal mediation.  A hallmark of the best mediators is they know when and how to keep the process going, at or even after the mediation.