Prof. Stephen G. Goldberg surveyed 30 experienced and successful mediators: 28 had mediated at “least 100 disputes,” and 2 had mediated “more than 50 but less than 100.”
He wanted to know “how they accounted for their successes.”
Prof. Goldberg reports his survey findings in, “Mediators Reveal Their Essential Techniques for Successful Settlements,” 24 Alternatives to High Cost Litig. 81 (2006). And here are those findings.
Prof. Goldberg’s central finding from the survey is this:
“the key element in successful mediation is developing rapport with the parties.”
This finding, he says, is the “overwhelming response given by more than 75% of” the mediators. He adds,
“If the mediator is unable to develop rapport,” settlement is unlikely to occur—and “it matters little how proficient the mediator” might be with other mediation tactics.
By developing “rapport,” the experienced mediators are referring in the survey to “a relationship of understanding, empathy, and trust.”
Primary reasons for the importance of such a relationship, according to the mediators, are that it:
–“encourages the parties to communicate more fully with the mediator”;
–“gives each party comfort and confidence that [the mediator] can ‘explain’ their position” to the other side; and
–creates trust, so the mediator is “believed and not seen as a tool of the other side.”
To create a such a rapport, (i) most mediators agree that “the key lies in empathic listening,” which communicates the impression that “the mediator truly cares about the parties’ feelings, needs, and concerns,” and (ii) some cite “their own reputation for being honest, ethical, and trustworthy.”
While developing rapport “may be the most important factor” in mediation success, “it will not in itself lead to a settlement.”
The primary mediator skill needed, to go along with rapport, is an “ability to generate novel or creative solutions to the dispute.” The mediator survey says:
–about half of the surveyed mediators identify this “inherent creativity” as “one of their central strengths”;
–some attribute their creativity strength to “careful listening”; and
–some emphasize “the importance of attributing” the mediator’s creative solution “to the parties.”
Some of the mediator survey respondents identify the following factors as important to their success:
–using “humor to reduce tension”;
–combining “patience” with “tenacity” in pursuing settlement, even when one or both parties appear to have given up on settlement;
–focusing the parties on the “consequences of not settling”;
–exercising a well-honed and innate sense of timing (e.g., on when to push the parties toward settlement);
–helping the parties to understand the conflict “from the perspective” of the other side through “selective questioning”; and
–maintaining an outwardly optimistic attitude” toward the likelihood of settlement.
Wow! It’s not every day we get direct information from experienced and successful mediators on the secrets of their success. These findings from Prof. Goldberg’s survey are gems of wisdom for all mediators to consider.
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