Mediation is helpful in any type of dispute. Few cases couldn’t benefit from mediation. The success of a mediation is not wholly dependent on the skills of the mediator, but an experienced mediator can make a big difference. Insured monetary disputes involving small personal injury cases require certain knowledge and experience. But more complex litigation and those involving substantial damages require another set entirely.
Effective mediators play many different roles during the course of a mediation, but the roles are played much differently in large complex cases.
Sometimes a mediator is passive and sometimes active. In high-volume, routine personal injury cases, a mediator’s ability to actively influence the evaluation of a seasoned adjuster or experienced trial lawyer is limited regardless of the mediator’s skills. A mediator’s role is generally more passive in such situations. However, in complex and high-dollar cases with unique facts, a mediator’s active role becomes crucial. The ability to know when and how to actively serve as a facilitator is lost on many mediators.
In order to reach the best resolution, the parties to a negotiation must know and consider their interests.
Helping the parties identify their own interests and appreciate those of the other side requires a special skill set that not many mediators possess. A mediator should be more than a potted plant, blindly shuffling offers to and fro. Asking probing questions, actively listening to the parties, and brainstorming potential solutions are just some of the skills utilized by mediators of successful complex cases.
Large and complex cases routinely hit stumbling blocks in the course of mediation.
Experienced mediators know to expect them and are well-equipped to handle them. These cases often involve emotions. They cannot be ignored. But they must be effectively managed if negotiations are to continue effectively. A skilled mediator can handle them. The patience and persistence required by a mediator of these cases is paramount to a successful resolution. Knowing when to pause and when to power forward is not intuitive but comes from years of experience and active listening skills.
Circumstances often dictate a mediator’s need to be evaluative. But expressing ill- or uninformed opinions is not helpful to the process and can be disastrous.
Knowing how to be effectively evaluative, having the credibility to pull it off, and possessing the wherewithal to bite one’s tongue until the parties are primed and ready to listen are skills that many mediators do not possess.