From the Fork in the Road: Reflections of a Veteran Mediator Trainer
This has been an eye-opening year for me as a mediator and trainer. I have been mediating and training mediators for over three decades and, once again, I am humbled by how much there is to learn, how important the lessons are and how powerful, relevant and malleable the process of mediation is.
I joined Miles Mediation & Arbitration in September of 2016 and conducted the first mediator training classes at Miles in Atlanta and Savannah in 2017. Simultaneously, I shifted my practice to exclusively private mediation and left the world of community and court-connected mediation. Hence, I found myself standing at a fork-in-the-road where community mediation meets private mediation.
Private mediation began its own history in Georgia in the early 80s. Today, there are attorneys whose full-time and lucrative practice is mediation and arbitration. When I first told fellow attorneys that I was a mediator in the 1980’s, I often was the butt of jokes, such as the time one attorney asked if he got a massage with the mediation. How far we have come.
What hasn’t changed over my career? The process of mediation has withstood the test of time, attorneys and culture. The portions of my training describing the flow, the tools and the terminology has remained consistent (although I am constantly improving upon my teaching methods). The confidentiality of mediation remains vital and protected. The importance of clear, workable and enforceable terms in a written agreement is still critical to providing parties with lasting closure of any dispute. The people who complete training and become effective mediators are still full of personality, tenacious problem solvers, great communicators and instinctive students of human nature.
What has changed illuminates that “fork-in-the-road” I referenced earlier.
I used to train mediators to be strictly “facilitative” which means focusing on the process and carefully avoiding offering opinions on the strengths and weaknesses of the parties’ cases. As my own mediation practice matured, I shifted my training to include multiple skill sets including transformative, facilitative and evaluative techniques. One mediator may be transformative with one party or at one stage of a mediation but that same mediation may shift to facilitative or evaluative with a different party or at a different stage in the mediation. I have learned, and I now teach, that mediators need to be able to adapt to the nature of the dispute, the personalities in the room, the needs of the parties and expectations of both parties and attorneys.
Court Systems and Litigation
Court systems have become overwhelmed with numbers of cases and under-supported with public funds. As resources shrink, the cost of litigation has risen and the frequency of trials has decreased exponentially. The need for mediation, both private and court-referred, has never been greater. A legal system in which trials are an extravagant rarity requires a different skill sets from litigators. Lawyers must be competent negotiators and must prepare their clients and cases for both settlement and possible trial. When I was in law school, negotiation wasn’t taught and mediation wasn’t mentioned. Hence, I believe with more passion than ever that every attorney should complete mediator training because all attorneys need to be able to have difficult conversations, negotiate with their own clients and other attorneys and anticipate and resolve conflicts.
Mixed Training Classes
Miles training classes have been filled with both private and volunteer [community] mediators, with lawyers and non-lawyers, with diversity of age, experience and culture. This mix of people and purpose keeps us focused on what is important and unchangeable about mediation: the complexity of fairness, the effectiveness of empowering parties, the de-escalation and movement inspired by active listening, and the ultimate need to find solutions and write good agreements. I believe mediation is best taught in an interactive, challenging, real and hands-on experience rather than lecture. I love to watch trainees with different experiences and goals struggle, learn, grow and re-examine with each other and through role plays, heated discussions and practice, practice, practice. Can you tell I love what I do?
As private mediation is growing, so must community mediation. Mediators need to remain a cohesive profession protective of the essence of mediation. As I stand at this fork-in-the-road where community meets private mediation, I know and feel the pressures on both. Just as private mediators must protect fairness and neutrality at the risk of marketability, community mediators need to understand and meet the expectations of attorneys and courts without risking neutrality and affordability. Nothing worthwhile in life is easy, and the future holds many worthy challenges. Here’s to another decade of learning!
For more information about the next Civil Mediation Training Course at Miles, click here.