Leading Attorneys Discuss Mediator Effectiveness

The International Academy of Mediation (IAM) met in New York City April 15th for a day of stimulating presentations on a variety of key topics. Jeffrey Kichaven of Los Angeles assembled an all star cast of law firm luminaries from across the country, including:

Allan J. Arffa, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; John S. Kiernan, Partner, Debevoise & Plimpton LLP, New York, NY: Robert J. Mathias, Partner, Joint Global Leader and US Chair, Litigation Practice, DLA Piper, Baltimore, MD; Marko Mrkonich, Littler, Mendelson, P.C., Minneapolis, MN; and Kenneth M. Roberts, Partner, Executive Committee Member, Schiff Hardin LLP, Chicago, IL.
to comment on what plays – and what does not – on the Broadway stage of mediation. Primarily, effective mediators were seen as those with the skills – and courage – to engage counsel and the parties; test their positions; and help them modify those views when appropriate, even with their clients in private caucus. A skilled mediator was seen as one who helps people along an emotional path; and always finds a way for the parties to leave with their dignity intact.

Preparation and persistence were prominently mentioned, together with the plea, “Do no harm”. With a nod to the Hippocratic Oath, this maxim should be on every mediator’s mind as he or she enters the arena.

Other essential mediator skills included:

  • Demonstration of intellect and attention to detail, together with an awareness of the “humanity of the exercise”.

  • Projecting an interest in arriving at a “fair” decision. (Query: What is the definition of “fair” as opposed to the perception of a party’s interests? An outcome that distributes the pain equally? Or most approximates the probable court outcome, perhaps adjusted for fees and costs?)

  • The merits should always be part of the conversation, even when the parties are focused on the numbers.

  • Contextual awareness is key. A focus on agendas of participants, their agents and those they report to. Attention to the interpersonal dynamics among counsel, parties and stakeholders.

  • Trustworthiness; security of confidential communications and no “tricks” – ever.

Does your favorite mediator demonstrate the skills and traits described above?

- John J. Upchurch

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