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  • Writer's pictureCooper Shattuck

Which Hat to Wear in Mediation?

Updated: Jan 25, 2023

Hats have had a long and varied history in our country. They have been a necessity for some (hard hats, beekeepers’ hats, motorcycle helmets) and functional for others (cowboy hats, baseball caps, and fishing caps). Over time, they have been in and out of fashion.

As a mediator, I must wear many different hats.

Sometimes I serve as a counselor with my listening cap firmly secure. This allows a mediation participant to tell his or her story, an important element of the mediation process. Sometimes I wear the hat of a devil’s advocate to explore the strengths and weaknesses of a party’s positions. On other occasions. I wear the hat of a judge or jury, giving my opinion on a piece of evidence, a legal theory, or the value of a case. Other times I wear the hat of a cheerleader when someone’s energy is waning, and they need encouragement to move on. Still, other times I wear the hat of a policeman when it becomes necessary to ensure someone’s security or feeling of insecurity.

A good mediator does not choose a hat for the day or for the mediation. Instead, close attention must be paid to the needs of the parties, and the mediator must quickly assume whatever role is dictated by the circumstances.

A mediator’s bag must be stocked with all sorts of hats for any and every occasion and readiness and comfort to change them as needed.

Unfortunately, some mediators’ closets are lacking.

They have no hats or perhaps only one that they are comfortable wearing. Others appreciate that they have many from which to choose but aren’t comfortable wearing more than one. Still, others may possess the necessary assortment, but they don’t all fit.

A comfortable hat is one that is sized correctly and is broken in.

As a mediator, knowing your strengths and weaknesses is akin to determining your hat size. What are you able to get away with wearing? What credibility do you have in the many different roles? Assuming you know what to wear and your size, how often has it been worn? In other words, how much experience is necessary?

What is true for the mediator is equally true for the negotiator. As an attorney in mediation, one must wear many different hats. While there is no substitute for experience, you do have the benefit of the mediator, who is there to help you choose the right hat and see that you wear it well.

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