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One of the best mediators I have worked with describes the mediator’s role as helping people have difficult conversations.  I don’t use that line in my mediations but I often think about that description when working with parties that know they should resolve their dispute but cannot find the path forward. With that in mind, I found this interesting article on how to have those conversations if you are conflict averse.  These tips come from an executive leadership coach and is not specific to mediation of civil legal disputes but is nevertheless instructive: The article, “How to Have Difficult Conversations When You Don’t Like Conflict,” is worth the 3 minutes it takes to read.  If you don’t have time to read the article, his points are: Begin from a place of curiosity and respect.  The other side has a different perspective, approach the conversation to learn why they do not

Facilitative vs. Evaluative Mediation In late July, I spoke to the ABA Forum on Construction as part of a panel on how to be a better negotiator in mediation.  I asked my fellow panel members, both experienced mediators, to describe their mediation practice in a few sentences.  One called herself a facilitative mediator, the other an evaluative mediator.  Further discussion though revealed that the objectives and techniques did not differ greatly. I think most civil case mediators would use the label facilitative to describe their approach but also admit that they are chosen to facilitate the settlement conference because they have experience in the substantive area of law at issue.  This leads to the conclusion that the parties or their counsel expect some level of evaluation from the mediator.   Good mediators walk a thin line maintaining neutrality (and equally important, the appearance of neutrality) while also communicating potential weaknesses

I recently read this interesting article by Professor John Lande on how mediators can help bridge the communication gap between a lawyer and his or her client: Lawyers Are From Mars, Clients Are From Venus; And Mediators Can Help Communicate In Space In mediation we so often focus on ensuring accurate communication of information and positions between adverse parties that its easy to overlook a need in some cases to ensure good communication between the party and his/her counsel. In one recent study of medical malpractice mediations, research showed that the lawyers and their clients were not focused on the same things. Understanding that monetary relief is the legal system’s only remedy, lawyers tended to focus on those outcomes. In contrast, the parties may be more focused on non-monetary goals, such as admissions of fault, apologies, etc.  As researcher Tamara Relis wrote: Lawyers and clients live in “parallel worlds of

I recently read an interesting article by a mediation trainer suggesting that he actively encourages new mediators to become “more stupid.”  In the article, Michael Jacobs contends that “stupidity and ignorance are essential assets” of a good mediator.  His point is that mediators — like most people thrust in the middle of disputants — have an almost insurmountable desire to figure out the problem and lead the warring factions to a resolution and that this should not be our role.  Jacobs contends that The success of mediation is often in direct proportion to the mediator’s ability to resist the impulse to coax the parties in the right direction. I am not sure I agree with a general statement like this applying to all mediations.  Some parties need more help than others but it is true that mediation should be a vehicle for the parties to fashion a resolution with the