Supplying the Effort

Jack and Jill are both respected and successful mediators.

Jack often gives his opinion as to the value of a case. Jill never does.

Jill routinely separates parties into private caucuses soon after commencement of a mediation. Jack rarely uses private caucuses at all.

Jack brings settlement forms with him to a session, and has them executed when settlement is reached. Jill neither requests the execution of a writing, nor does she participate in the drafting or execution of any by the parties.

One is casual; the other formal. One feels responsible for a mediation’s outcome; the other only for the process.

Both of them have loyal and repeat clients, and many of those clients use both Jack and Jill.

There are as many styles of mediation as there are mediators, and more still given that a mediator may adopt different styles on different days. Yet all of them are filling the same role. What have they in common that defines that role?

Disputes have settled, forever, without mediators. We are not essential to eventual settlement. We, or more accurately, the process, may be essential to settlement at the time of the mediation.

A dispute exists. We know that it, like all disputes, is bound for eventual resolution, and that that resolution will more likely be by settlement. The question for the mediator to ask is: Why hasn’t this case settled? What’s missing? In asking and answering those questions, Jack and Jill both take on the role of mediator. In supplying those missing things, they fulfill the role.

Many things can be missing. Opportunity. Understanding. Patience. Support. Clarity. Empathy. Objectivity. Neutrality. Optimism. Respect. Perspective. Humor. Trust. Flexibility. Creativity. Encouragement. Truth-Telling.

Some of what’s missing, like patience, empathy and reassurance, may be in the mediator’s own inventory. Some of what’s missing can only be encouraged by the mediator; the parties themselves must choose to understand, to trust, to be flexible or creative. And some of what’s missing may be exclusively within the control of a party, its existence not even known to the mediator.

It doesn’t matter who controls the missing ingredient. It is the role of the mediator to be the supply officer to the settlement effort, and to provide that ingredient. Those things within the mediator’s control require only the mediator’s generosity and willingness to work hard. Those things completely outside the mediator’s control, or subject only to the mediator’s encouragement, require her skill as well in bringing those forth from the other participants. The degree of difficulty is not an excuse, it is the reason the case hasn’t settled before. Ultimately, what the mediator brings to the dispute is the process itself. The roles are defined by the process. The parties must make the decisions. The attorneys must advocate and advise. The mediator must discover and supply the opportunity.

Jack and Jill, with all their differences, both bring optimism when all are pessimists. They both offer energy when everyone else falters. They both listen when people need to be heard. They’re both patient in the face of impatience, and tolerant when settlement is threatened by intolerance. Their style does not make them effective. Their ability to supply the effort vindicates the style. The role is the same regardless of the style.

A mediator’s own needs are seldom among those things that it would be well to bring. Bagels, on the other hand, are a good thing to bring. Cream cheese, too. It gets harder from there.