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Mediation Process: (Berman) Make Your Mediator Work Harder

August 22, 2011

Tired of suggestions by mediators for YOU to work harder?  How about a different approach?  Make your MEDIATOR work harder for you!

From time to time, reviewing materials from other mediators, I come across an idea or quote or theme that I feel is worth repeating in my blog for the benefit of those of you who follow my blog.  Sometimes,  I even consider adding to or critiquing  a new idea from my perspective.  At the least, however, I try to make it easier for you to review good ideas of others.

A recent example is an article by Lee Jay Berman, a prominent California mediator and mediator trainer, published in the Advocate Magazine, October, 2009, entitled, “12 Ways To Make Your Mediator Work Harder For You.”

I highly recommend that you read Mr. Berman’s entire article.   But, to assist you with a quick overview of his article, here is a quick index of his list:

1)    Voir Dire your mediator.

2)    Put them to work early and often!

3.    Brief them well.

4.    Arrive early and meet with the mediator alone.

5.    Enlist them as a strategic partner.*

6.    Make the mediator respond to your offers first.

7.   Make  them explain your offer completely.

8.    Have them be your eyes and ears.* 

9.    Have them give you your choices.

10.  Have them tell you when enough is enough.

11.   Make them work until the end.

12.   Expect them to work after it is over.

(*)  A couple of possible modifiers need to mentioned to keep these suggestions  in perspective,  particularly with your review of the entire article.

First, Mr. Berman is apparently not an attorney.  I say apparently because I have NOT thoroughly researched his education but base my impression solely upon a few of his other articles extolling the virtues of non-lawyer mediators.  This may be important to keep in mind comparing  attorney mediators in Florida whose mediation conduct is governed by not only the credentialing arm of the Florida Supreme Court which governs all Florida mediators, but by the rules governing the conduct of Florida attorneys. 

Second, Mr. Berman is credentialed,  again apparently, by mostly California entities having authority over his mediation work.  This is primarily important to know as Florida Mediators are expressly “facilitator-mediators”, and are not ethically permitted to be “evaluative-mediators” as is apparently permitted in other jurisdictions.  Simply stated (likely overstated) is that Florida mediators, attorney or not, are not, for example, permitted to offer opinions on the value of an issue at mediation.  And, even lawyer-mediators may not render opinions upon the substantive matters before them.  It is my understanding, generally, that either of these actions are believed by those who credential Florida mediators as potentially removing the total neutrality that presently our mediation profession expects from Florida mediators.

(I quickly note that this entire opinion/evaluation subject is actually much more complex than it might appear I suggest.  And I make these general observations without detailed analysis or inquiry to the several arms available for specific advice on a specific question.   I could be in error on both of these generalized distinctions, but I also think they could also be important for you to know when comparing Mr. Berman’s advice to what you commonly experience now or may in the future with Florida attorney mediators.)

For example, Number 5, “Enlist (the mediator) as a strategic partner”.  Mr. Berman seems to suggest you should overtly attempt to remove the neutrality of your mediator to your unilateral purposes.  He further suggests you ask your mediator to supply you evaluations of your issues including providing you with “your weaknesses/what you are missing”.   Although for any one party( and against the other) it may seem like a great idea, I see huge ethical issues raised by this “suggestion”.

(Note:  I  distinguish such specific unilateral evaluative help from more acceptable mediators pre-mediation  procedural suggestions and assistance to both sides or even specific help permitted and directed by the opposition in an effort for a more successful mediation for both parties. )  

For another example, Number 8, ” Have them be your eyes and ears”.  Mr. Berman himself concedes to a “disagreement” of the ethics of this request for reporting of mediators’ observations in one room to another.  I, for one, see nothing to disagree about regarding this “suggestion”.  I know of little that would constitute a breach of a mediator’s confidentiality more than reporting caucus observations, which if inquired about to that party, would never be permitted by that party to be reported to the opposition. 

Again, I understand how important such unilateral information would be to one side over the other.  But so would almost every other confidential communication!

(Note:  And I distinguish such clandestine unilateral reporting of observations in any given room from similar use of mediator’s “impressions” of the progress of negotiation used  for any mediators goal of an orderly progression to mutual resolution.)

But, even with these two qualifiers, I believe the thoughtfulness of Mr. Berman’s excellent article is well worth your reading it.  Some of his recommendations are repetitious of what every other mediator recommends, but bears repeating for those serious about becoming better mediating parties.  It should be obvious to all that there must be very good reason that all mediators recommend some of his suggestions.

But some of his suggestions are also unique.  For example, Number’s 6, 7 and 9, dealing with the critical interactions of the mediating party with the mediator and using the mediator to test and refine negotiation ideas and movement are an excellent suggestion to be considered.  Particularly Number 6.  It suggests that you test each of your steps of negotiation with the mediator BEFORE you finalize your instruction to your mediator to convey it.   Such “use” of your mediator by both sides is one of the best ideas for allowing the mediator to help you help yourself.  Oddly, however, it is not a technique that is used by many parties on either side of an issue.  But those who use this technique and other active uses of the mediator are miles ahead of those who do not.

 The entire article, however, is a refreshing reminder to mediators and to those who hire us, that mediation is hard work for everyone.  And, as you are paying good money to your mediator, why not obtain the maximum product from your mediator for your money paid?

I know I will be thinking and preparing for several of these unique suggestions, just in case you push ME on them.

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2 Comments leave one →
  1. August 23, 2011 12:25 am

    Hi Dan,

    I’m glad that I rattled your cage a bit with my article, and that it appears that you’ll be “thinking and preparing for several of these unique suggestions” as a result! That is all that I can ask. Yes, I am a mediator, not a lawyer. And Yes, evaluative mediation is what the market wants and what mediators deliver as a PART of what we do in most every jurisdiction outside of Florida, where it is apparently legislated out. And to be clear, I usually don’t put a value on cases, but I do make negotiation recommendations. In my 17 years as a mediator, I have watched some 4,000 lawyers play poker with the hand of cards their clients have dealt them. Between that and learning from the best negotiation teachers anywhere, and having trained entire national claims departments (hundreds of claims professionals) in negotiation skills, I think that’s part of what lawyers and their clients want when they hire me. But as you adeptly point out, these are all matters of opinion. These choices, these stylistic differences, are what make us unique as mediators and anything but interchangeable commodities. I wish you much success in your work as a neutral. Your powers of observation, your keen insights, and your staunch ethical stance will make you very successful. I’m flattered that you chose my article to blog about. You certainly did a great job of analyzing it.

    Keep up the good work!

    Lee Jay Berman
    Los Angeles, CA

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