An Insider's View to Trust in Mediation

What steps can counsel take to assure the client that his or her interests will be protected in mediation, that his or her interests are being ‘committed into the care of another’ that counsel and client will be able to trust the mediator? The most important way for a mediator to earn the client’s trust is to continually reinforce that the parties control the substance and, therefore, the outcome of the mediation.

There are three major components to the mediation process where trust in the mediator is created or destroyed:

1. Mediator Selection
2. Intake
3. the Mediation Session itself

Mediator Selection

One important aspect to trusting the mediator and the process is the opportunity for counsel and client to have input into the process. When selecting a mediator, counsel should find a provider that will allow his or her client to choose from a roster of experienced, professional neutrals. Being able to review several bios of various mediators allows the client to find someone whose background makes the client feel comfortable. If the parties do not agree on a mediator, they are encouraged to rank-order the list independently and forward to the provider. After a mediator is chosen, he or she should provide a disclosure statement in writing to identify any areas that may create perceived challenges to their neutrality. Counsel and client should then be able to respond to the disclosure with any concerns.

I asked a few of our mediators about the role of trust in mediation. Mediator Kim Stamatelos says that ‘counsel should not pick a mediator as they would pick a court reporter. An astute advocate will be strategic in selecting a mediator.’ Kim further advises that if the client is invested in the mediator selection, he or she will more quickly warm to the mediator at the actual session, thus allowing a smoother flow of information more rapidly. Mediator Arlene Grant advises counsel to select a mediator who will be ‘neutral, competent, an active listener, strong communicator and sensitive to the issues at controversy.’ Mediator Bud Silverberg goes further and suggests that counsel ask to ‘interview’ various mediator candidates. If one ends up with a mediator not known to him, he further advises counsel to be very cautious, to not divulge truly confidential information until you can get a sense that you can trust this person.

The selection process allows counsel to research the mediator candidates to find out about their personal demeanor, mediation style, knowledge of franchised business and additional experience not mentioned in the bio. This vetting process will allow the client to feel that he or she is making an informed decision when choosing a professional neutral.

Intake

‘Intake’ is the opportunity for interaction between the parties and the mediator early in the process. This opportunity should not be taken lightly and be limited to scheduling the mediation date and time. Communicate the needs of your client and engage the mediator in a discussion of his or her style, which dialogue, as Arlene suggests, will build trust, energize and engage the parties and create understanding on how best to manage the mediation. During intake, the trust for the mediator will depend on his or her practice of transparency and focus on confidentiality.

Transparency

Mediation succeeds to the degree the parties and the process are transparent. The mediator should be transparent about the mediation process and the flow of information. To accomplish this, the mediator should provide a thorough introduction to the mediation process so that the client understands the process, understands what he or she controls and knows, what information will be shared with, and received from, the other party prior to the mediation. If there is something counsel needs to hear and is not being addressed, then counsel should ask. As expressed by the mediators I interviewed for this article, transparency is a shared responsibility.

The mediator should invite questions and comments during intake so that the client can gain any necessary clarification and provide his or her expectations. In addition, the mediator should invite parties to provide mediation submissions in advance of the mediation both to the mediator and exchanged between the parties. This information sharing contributes greatly to trust in the process and will assure that the mediator will be prepared for the mediation and will enable each party to come to the mediation understanding how the other party sees the dispute.

Confidentiality

A confidentiality agreement should be provided to the parties ahead of time for review and response, if necessary. The agreement should be signed on the day of mediation by all attendees and the mediator. Sometimes, the confidentiality agreement is part of a mediation and fee and does not serve the parties as well as having everyone sign in the presence of each other on the day of mediation. In addition to the confidentiality umbrella that protects the entire process, there is an additional layer of confidentiality that the mediator should explain to the parties. For you and your client’s knowledge, don’t hesitate to ask how the mediator handles information learned in the private sessions. Some mediators explicitly ask the parties to tell them what information is confidential and not to be shared: otherwise, all information can be shared. Other mediators consider all information in the private sessions as confidential and the parties have to indicate specifically what information can be shared with the other side. This is an important difference in style that you will want to explore with the potential mediator.

Mediation Session

Because mediation is a voluntary process, if a party’s trust is broken during the session, he or she can leave the process at any time. The mediator must, therefore, continue to earn the trust of both parties during the mediation session. There are a number of things that counsel and client can look for the mediator doing to support that trust:

• Providing another introduction to the process, to assure that all parties fully understand the process as it will unfold that day;
• Instead of directing who goes first in the opening or joint session, ask the parties who prefers to present first;
• Listening attentively without repeatedly interrupting;
• Reflecting back what was heard to assure understanding;
• Asking open-ended questions that are not leading;
• Working closely with the parties to fully understand what is important to them before asking for options to solve the issues.

In addition, you do not want a mediator who influences the parties by advising them or by providing an uninvited evaluation, thereby diluting the self-determination of the parties to control the outcome. Bud Silverberg advises that counsel not allow him or herself to be pushed or coerced into taking a position he or she is not comfortable with. Ask for a ‘time out’ and express your concerns privately and directly to the mediator.

For a mediator to earn the trust of counsel and client, he or she must empower the parties to control the substance and outcome. Ways to help a client feel that he or she can trust the mediator include allowing selection of the mediator from a roster, the mediator conducting intake in a way that provides information about the process while promoting the transparency and confidentiality of the process and the mediator conducting the session in a way that does not lead or advise the parties. If an issue regarding trust does arise, counsel and client should address it to the mediator immediately. If it cannot be resolved, the mediation process is voluntary: therefore, they can leave at any time. Mediation is a very cost effective and efficient manner in which to address disputes. One mediator interviewed aptly stated that a mediator should not be an obstacle to availing the client of its benefits.

--

About the author: Nancy Connelly is the Director of Commercial Mediation and Arbitration at Mediation Works Incorporated (MWI) in Boston. She can be reached at nconnelly@mwi.org or at 800-894-8323 x25.