Does a mediator need subject matter expertise and a clear understanding of substantive issues to be effective and assist parties with settling a case? My take is a definite yes.
A big part of an effective mediator’s role is to help parties see the strengths and weaknesses of their case and to predict what an outcome at trial/arbitration may be. An effective mediator may need to offer his or her take on the strength of the parties’ position on issues such as liability and damages. To make persuasive recommendations, a mediator must understand the parties’ legal rights in addition to their needs and interests. A strong background in the law, familiarity with legal principles and being up-to-date in relevant case law is crucial.
After the opening of a mediation, mediators often caucus with each side and practice “shuttle diplomacy”. They help the parties and lawyers evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation. To be persuasive, they need to be knowledgeable about the issues at hand. Sometimes a lawyer and their client may not be seeing eye to eye on the best resolution; in this situation, a knowledgeable and experienced mediator can really make a difference in helping build the consensus necessary to move a case toward a settlement.
An effective mediator should also be able to truly understand what can and what does happen at a trial or an arbitration. Experience in these environments is key. By offering an informed viewpoint, a mediator can help the parties truly evaluate the strengths and weaknesses of their cases, help parties learn about the other side’s case, and put all participants in a better position to assess the risks of not coming to a resolution at mediation.
Often during a mediation counsel will say certain testimony or a medical report will prove the case at trial. If the mediator has extensive experience arbitrating cases – evaluating witnesses credibility and documentary evidence – their take on how persuasive a witness’s testimony and a report may or not may not be will be especially valuable. At times providing a reality check about assumptions being made or posing thoughtful questions based on specialized experience can help parties see the other side’s point of view in a different light. This approach can provide invaluable insight to the parties, help them better assess their case and often make a settlement more likely at mediation.
Having recently established my mediation practice, I have been reaching out to lawyers to find out what qualities they look for in a mediator and some of their past challenges dealing with mediators. A consistent theme that is mentioned is that mediators give up too quickly when the parties appear to be far apart.
A mediator with extensive subject matter expertise, a strong command of the law, and the ability to ask questions will be far less likely to throw in the towel when the distance between parties seems insurmountable. A well-informed and experienced mediator can approach these sessions with confidence as they will have the specialized knowledge necessary to help the parties to reassess their own position, better consider and evaluate the other party’s position, and break impasses that would otherwise prevent the parties from moving closer to a settlement.
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (647) 250-7216 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please visit https://schnappmediation.com/calendar-2/ or contact Lacey Day at lacey@schnappmediation.com or (647) 250-7216.
