THE MEDIATORS’ SKILLS – EPISODE 2

Written by Graham Perry

Graham Perry M.A. Cantab FCIArb Experienced Arbitration Lawyer | China & Chinese Business Affairs | Public Speaker/Lecturer

29 July 2021

MEDIATION #143

A mediator needs to gain the confidence of both parties but without giving either party the feeling that he/she is “on their side”. This is not as easy as it sounds. Let me explain – the first meeting with Party A, with or without their solicitor, is an opportunity for A to give you his/her account of the dispute. It will likely be subjective + often include a series of negative comments about B. Your job is not to agree or disagree, but just to listen, reflect, analyse + make mental notes. Don’t write – that comes later. Just focus on quality listening + warm eye contact + the occasional smile. You need to use what you are hearing to promote a settlement but do not fall into the trap of expressing support or sympathy for A. Why? – because your impartiality flies out the window.

So be sincere but not judgmental. Be sympathetic without becoming partial. Show empathy + humanity but no expression of support. The parties may want you to agree on them but they will also recognise that your job is to remain detached from what has gone before + respect you for your independence. Again, how you convey that, the words you use, the body language you display is part of the skill of being the mediator.

You also need to be persistent in pursuit of a solution. Not intense or relentless, just persistent. Convey to the parties that you are aware of the importance of mediation in finding a solution to their problems. They will appreciate that. Being dogged does not mean talking too much, or too loudly, or too rapidly or with any sense of desperation – if a settlement appears to be beyond grasp. It requires you to look at all angles, all options and to outline what the future holds if the mediation is unsuccessful. That is tenacity.

In Episode 3 I will look at the Mediator’s post-event evaluation.

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