Facilitation, Conflict Management and Dispute Resolution 
Joseph P. McMahon Jr.  

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The article below discusses some issues that are appropriately discussed in an interview of a mediator.  When I am being interviewed for a mediation task, I often sense that parties seem to interview me as though I am being evaluated as an arbitrator rather than mediator.  Strangely, when I am being questioned for an arbitration assignment, the questions are more indirect or not asked at all.  Mediation interviews seem to be more focused on (1) whether I can understand and agree with their view point rather than (2) can you explain and lead us into a decision making process.   

"To Gauge Skills, Lawyers Should Interview Any Potential Mediator Very Thoroughly"

Originally published in The Colorado Journal, January 20,1999--Reprinted with Permission

Selecting a mediator is as important as deciding to mediate. This reality makes it crucial that lawyers and clients interview any potential mediator to determine whether that person has the skills to formulate a viable resolution.

To understand why the mediator selection process is so important, consider the following scenario:

Six people sat in a conference room to resolve a construction dispute through mediation. The disputing parties had very different ideas about the causes of construction delays and the amounts, if any, due to the contractor because of changes in construction and site plans. As the mediation proceeded, however, conflict among the parties increased; the conflict was not the one raised by construction delays or changes in construction plans. Rather, the conflict in the mediation arose because the parties had neither a common understanding of how the mediation was to be conducted nor the mediator's role.

Though undisclosed and unintentional, each participant came to the session with a perception of mediation, and that perception unconsciously controlled the person's conduct in the mediation. While the mediator sought to facilitate frank discussions between the parties, one party sought a prompt exchange of final settlement offers. The other was neither interested in better communication nor making a settlement offer; instead this party sought the mediator's confidential evaluation of the case. Even representatives of the same litigating party did not share common views of the mediation goals.

The unproductive efforts of the mediation participants may have been avoided by an interview with the potential mediator to ensure that the participants came to the mediation with a common understanding of how the mediation would proceed.

Prior to the interview with a potential mediator, it is important that the lawyer and client know what they expect from the mediation. Mediation is very broadly defined, and there is a hot, ongoing debate within alternative-dispute-resolution circles as to which of the mediation styles are appropriate. See, for example, Leonard L. Riskin, "Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed, " 1 Harvard Negotiation L. Rev. 7 (1996); Kimberlee K. Kovach & Lela P. Love, "Mapping Mediation: The Risks of Riskin's Grid," 3 Harvard Negotiation L. Rev. 71 (1998); James J. Alfini, "Evaluative Versus Facilitative Mediation: a Discussion, " 24 Fla. St U. L. Rev. 919 (1997); Lela P Love, "The Top Ten Reasons Why Mediators Should Not Evaluate," 24 Fla. St. U. L. Rev. 937 (1997); Jeffrey W. Stempel, "Beyond Formalism and False Dichotomies: the Need for a Flexible Concept of the Mediator's Role," 24 Fla. St. U. L. Rev. 949 (1997); Joseph B. Stulberg, "Facilitative Versus Evaluative Mediator Orientations: Piercing the 'Grid' Lock," 24 Fla. St. U. L. Rev. 985 (1997); and Leonard L. Riskin, "Mediation Quandaries," 24 Fla. St. U. L. Rev. 1007 (1997).

In light of the substantial differences in mediation viewpoints, a lawyer's selection of a mediator necessarily has a great effect on the subsequent mediation. By selecting a mediator (or having a mediator selected for an opponent or an ADR institution), one has likely "selected" a mediation style.

For simplicity. mediation styles are commonly broken into two broad categories: evaluative mediation (wherein the mediator encourages settlement by providing his or her evaluation of the strengths and weaknesses of each party's case); and facilitative mediation (wherein the mediation is focused on facilitating efficient exchanges of the information needed by each party to make settlement decisions). The skills required of a mediator vary greatly between those two styles.

Typically, a potential mediator is not skilled in both styles; rather, he or she tends to be either principally facilitative or principally evaluative. Consequently, prior to interviewing a potential mediator, both sides should thoughtfully and carefully consider the type of mediation process they desire. By selecting a mediator without a common understand among the parties and legal counsel as to how the mediation will be conducted, the parties will invite inefficiency, frustration and failure.

The fundamental purpose of the interview is to determine whether the mediator's skills are those necessary to resolve the dispute. Prior to any interview of potential mediators, the parties and their legal counsel should discuss whether such pre-mediation interviews should be conducted jointly with all parties and counsel present or, alternatively, whether the interviews may be conducted individually by each party or each party's counsel. Additionally, the parties and their counsel should consider whether to conduct an in-person or telephone interview with the proposed mediators.

The advantage of an ex parte interview with a potential mediator may simply be its efficiency -- the mediator's full attention and no need to coordinate with the opponent's calendar. Prior to any ex parte interview, however, it may be wise to agree with the opponent that the ex parte interviews of potential mediators will focus on the mediator, the mediator's background and approach to mediation rather than the substance of the dispute. A general and ex parte discussion of the mediation process is not likely objectionable to both sides if independent discussions are not intended to influence the mediator's neutrality.

As compared with ex parte interviews, joint-party interviews of potential mediators can provide some specific benefits: First, it avoids concern by any party as to the nature of the ex parte discussions. Second, it may permit the parties to more thoroughly explain the nature of the dispute in order to explore the mediator's relevant experience. Third, a joint interview provides the mediator an opportunity to explain his or her approach to all parties simultaneously so that a common understanding of the process exists. Fourth, it provides an opportunity to see how the mediator communicates with all parties present. Finally, a joint interview also permits the potential mediator to ensure that the parties do not have any meaningful differences as to how the mediation will be conducted.

Whether conducted ex parte or jointly, an interview can help the mediator understand both sides' reasonable expectations as to the mediator's expected role. For example, do the parties expect the mediator to assess case strengths and weaknesses? Is the mediator expected to facilitate mutual gains bargaining? If so, how will that be undertaken? Do the parties expect the mediator to suggest possible solutions or settlement amounts?

Likely subjects for an in-person or telephone interview with a potential mediator include the mediator's background; training; his or her mediation approach (facilitative versus evaluative); his or her knowledge in the subject matter of the dispute; the process or format normally used by the mediator; and the mediator's approach to dealing with conflict.

Below are topics that may provide a framework for the potential mediators' interviews:

• Logistics. Ask questions related to matters such as the mediator's fees, the venue for and length of the sessions, and who should attend those sessions.

• Potential mediators background. Counsel should inquire about the mediator's ADR training and experience, and the types of cases and disputes he or she finds interesting.

• The process. Relevant questions here should cover issues such as how the mediator will communicate with the parties; his or her mediation goal; and whether he or she will want to meet separately with the parties' representatives.

• Roles of the participants. When dealing with corporate entities, for instance, questions should cover what is important to the mediator about the selection of the person who acts as a corporate representative and the mediator's expectations concerning the authority or seniority of the corporate representatives. In addition, inquire about the mediator's viewpoint regarding the parties’ use of consultants and consulting lawyers in the mediation session, and how he or she distinguishes the roles of party representatives from those of the parties' legal counsel or consultant

• Difficulties in the process. Find out how the mediator would deal with stalemates or impasses; how he or she knows if the timing is right for mediation; and how he or she would respond to any posturing or threats in mediation.

• The mediator’s judgment. Here, the inquiry should focus on whether the mediator usually comments on strengths and weaknesses of the parties' cases, and how the court or arbitration panel may view the dispute; whether he or she feels a responsibility to detect unfairness in an agreement or the mediating process; and the mediator's role in providing "reality testing" regarding the practical and economic realities of the dispute or proposed solutions.

The above tips, if followed, will facilitate a smooth and successful mediation process.

Joe McMahon may be contacted at mail@jpmcmahon.com