Set Aside Your Legal Skills to Become an Effective Mediator
A recent article by Sir Henry Brooke, dealing with his new career as a mediator set me thinking about the different skill sets that mediators and lawyers need to do their jobs effectively.
Sir Henry Brooke is a retired Judge and became a Lord Justice of Appeal in 1996 and Vice-President of the Civil Division of the Court of Appeal of England and Wales in 2003. In the article he wrote about his personal perceptions and experiences:
"The advocate’s skills are to conquer the details of a dispute, to give clients high quality dispassionate advice about the pros and cons of pre-trial settlement offers, and if settlement fails, to place their case clearly and persuasively before the court or tribunal, whether in written or oral submissions.
The skills of a judge, on the other hand, are to conquer the details of a dispute, to read or listen attentively to the arguments on both sides, and then to deliver a judgment, whether orally or in writing, which shows that one understands what the dispute is about and is giving clear reasons for preferring one side’s case rather than the other.
A mediator’s skills are different. Of course he or she also must conquer the details of a dispute in order to secure the trust of both parties. But there the similarities end."
Sir Henry Brooke raises an important point. It’s not a natural switch for someone trained in the law, as a judge or a lawyer, to adopt the completely new stance of a mediator. Based on my experience, as both a lawyer and a mediator here are my observations:
A mediator does not judge. The nature of a lawyer is to assess a case, communicate with the client and then put the case on their behalf. A judge will also assess a case and then impose a solution upon the parties.
The mediator's role is to help guide the parties to a solution which is not of his or her making. On the one hand being a lawyer is an advantage in performing a mediation role as theoretically you can master certain legal issues more quickly. The disadvantage of this legal expertise is that it may incline you to form a view of the merits of the case and you start to impose a solution on the parties.
A mediator must focus on obtaining confidence of both parties. Body language and the way that you present yourself assumes a far greater role as a mediator than as a lawyer. Confidence must be obtained by the presentation of neutrality and respect to both parties which contrasts to the role of an advocate with its emphasis on being partisan. A lawyer must have a good relationship with his or her client to be effective but does not (nor should not) worry about the relationship with the other side. A mediator has to establish rapport with both parties.
An effective mediator will look to go beyond the legal papers whilst lawyers and judges need to focus just on the law. Whilst a mediator does have to master the legal issues, as I have evolved as a mediator I have become more and more interested in moving beyond the legal issues and to focus on understanding what the parties want. Money is often the most important dynamic if not the sole issue but often an intangible appears which can enable the mediator to help the parties reach a solution. By way of example within an employment dispute it may be for the mediator to help the employer to offer a former employee a reference or some contracting work if the relationship has not totally deteriorated.
A mediator has to be really careful in the use of language. Lawyers are used to having to be precise with their language with clients and with judges but a mediation dynamic where you are communicating between the parties means there is enormous pressure on the mediator for precision. Due to the fact that you are often communicating between the parties rather than the parties directly talking to each other, the words that you say as mediator have so much importance.
A mediator must be optimistic and people oriented. As a character trait one of the beliefs that I have about mediators is that they must be positive and be able to retain hope in the face of difficulties. They need a belief in the possibility that the parties can and should resolve their differences. Whilst the majority of lawyers I meet have determination and effectiveness they do not necessarily have the faith required for generating settlement. The skill set is focused on the presentation of a legal case and not necessarily the bringing back together of two disputing individuals to some form of harmony.
Human Law Mediation offers training course for lawyers who want to know more about mediation and develop core mediation skills. More details of our Making Mediation Work seminar are available on our website