“There are good mediators and there are bad mediators”.

This is a comment that I commonly hear when presenting on the topic of mediation, and in training and assessing new mediators. The comment always intrigues me, because the motivation behind it is always different.

Whether or not someone believes that a mediator has done a good or bad job often directly correlates with that person’s preference for a mediator’s style. It is even possible that a party to mediation is seeking a different type of process – the term ‘mediation’ has been mistakenly applied.  These factors need to be distinguished from another basis for judgement, being competency.

When I heard this comment recently made by a commercial lawyer, I asked what the lawyer meant by the comment. The reply was:

“A good mediator will tell you the answer and a bad mediator will ask you how you feel about it”.

The mediation style spectrum

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In this case, the lawyer was not identifying a competency issue. Instead their comment related to personal preference for a mediation style. If we look at it from this angle we will see that the lawyer was referring to two extremes on the style spectrum.

At one end of the spectrum is a mediation style that is “transformative” in nature. In Australia, transformative mediation is most commonly employed in the family law context, particularly in matters pertaining to the care of children. There will be moments in this or in other contexts when asking a party how they feel about a statement or option is perfectly valid. At other times and in other contexts this may be the most infuriating question that a party could hear.

At the other end of the spectrum is a mediation style that is far more “evaluative”. Anecdotal evidence suggests that evaluative mediation is more commonly provided by mediators who are also senior counsel, or by those who have been part of the judiciary. It would be more common to find this style employed in a commercial dispute.

Purists in the mediation field would argue that this is not mediation at all, but another process entirely. This argument is based on the notion that a mediator acts as an impartial, neutral, and independent third party who has no vested interest in the outcome. In a pure mediation model it is argued that a mediator will not make a decision or provide legal advice, but will employ their skills to manage a process that fosters self-determination. They will manage a process, rather than content.

Meeting national standards

Moving away from personal preference we can look at mediator competency in light of training and experience.

In 2008 Australia adopted the National Mediator Accreditation System, comprising of two key documents:

1. The National Approval Standards, and
2. The National Practice Standards

The Approval Standards establish threshold training requirements for those wishing to become nationally accredited. Core mediation training and a subsequent assessment are based on a candidate meeting core competency requirements, using a “facilitative” model of mediation. Facilitative mediation fosters the already mentioned principles of independence, neutrality and self-determination.

However, just because someone can “ticks the boxes” on assessment day, it may not necessarily mean that person has any of the necessary instincts or attributes of a good mediator.

Some of these qualities can of course be developed. However, it is possible that a new mediator with these inherent instincts, attributes and dedication may do a better job than a more experienced mediator, who abandons process ideals in favour of doing their own thing.

If a mediator's "own thing” provides clients with the process that they desire, then that is a result in itself. However, there is a risk in calling something “mediation” when it is in fact something else. That does no favours to the mediation process or to those investing in such a process.

Hallmarks of a good mediator

Essentially, and getting back to the two ends of the spectrum, I believe that a good mediator understands how to facilitate a discussion that fosters understanding, acknowledgment and self-determination. A good mediator will be able to move across the spectrum according to the needs and interests of the clients involved.

When it is appropriate, they will be able to ask the tough questions that test fixed positions in order to break an impasse. They will also be able to demonstrate empathy and an acknowledgement of the emotional aspects of a dispute when that is required.

A good mediator will be able to manage people’s expectations regarding the process steps and will use their skills to help people reach their own informed decisions that meet core needs and interests.

This also highlights an essential paradigm shift in the mediation process. Mediation should move parties away from positional bargaining or rights-based discussions towards a problem-solving and interests-based dialogue.

In summary, someone might identify a mediator as being “good” if they have been able to find a mediator with a style that suits their particular preferences. However, if a party to mediation is seeking a particular style, it is quite possible that the other party is seeking something different. This sets the stage for one to be satisfied with the process while the other person is not.

If a mediator can identify interests and address these, then they have met a key aim of the mediation process. If they can also be flexible in their approach, and provide a satisfying process for those involved, then they have shown themselves to be a skilled and responsive mediator.

As a legal representative you can play a vital role in providing a satisfying mediation process for your client by employing the following strategy:

·         Recognise whether your client requires mediation or another process;

·         Find a practitioner whose competency AND style match your client’s requirements; and

·         When looking for a mediator, check whether or not they are nationally accredited.

Bianca Keys (pictured) is the director of Bianca Keys Dispute Resolution Consulting. She is a nationally accredited mediator in the mediation field in commercial and workplace dispute resolution.