What makes a good mediator?
Faith S. Hochberg, retired federal judge and experienced FedArb mediator and arbitrator, explains.
Preparation is where top-quality mediators differentiate themselves. I hear from parties and litigators how much they appreciate it when a mediator has read everything they sent and has already started thinking of approaches to spur the parties to consider an adjustment in their position, to get moving to narrow that gap between them and reach resolution.
A sense of legal strategy and court strategy
If you know the likely path the parties will face if they don’t achieve a resolution, you can gently remind them what the possibilities are. Experienced judges have presided over decades of disputes, from the time a dispute is filed to when it’s resolved by motion, settlement, or trial, so they know that well.
The ability to listen really intensively
Your senses are always engaged intensely, trying to hear the hint that might ultimately lead to a settlement or spot a sign that might possibly spawn a creative suggestion to test out. Sometimes it’s not anything the parties were even thinking about.
For example, in certain types of cases, there are resolutions that don’t necessarily involve paying money from person A to person B. They could involve significant non-monetary relief, such as agreeing to appoint an overseer to monitor certain metrics at certain kick-in points down the road.
But the parties need a mediator to help them agree on how to quantify the metrics.