As the Summer months come to a [shockingly] rapid conclusion, I find we are still not so far along in our survey of the Model Standards of Conduct for Mediators [September 2005] and the practice and preparation guides that are conveyed in reviewing and contemplating the standards. This month we will address some of the views that arise from the Standards on Competence, with my comments italicized in the text…as we move into fall, these Standards will continue to inform or frame the discussion, but I’ll try to [appear] more thoughtful in substance. As always, your all too rare questions and comments are welcome and requested.
STANDARD IV. COMPETENCE
A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.
1. Any person may be selected as a mediator provided that the parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.
When it comes time to select a Mediator, there is a pretty broad spectrum of qualities that one may wish to consider. For me, I want to know what actual specific training the prospective mediator has taken. But then, I’ve taken a LOT of training myself, and I view the type of and perspective from training to be a vital factor in mediator selection. Then again, all the training in the world is not going to help if, for whatever reason I lack the “cultural understandings and other qualities” necessary for the particular dispute.
Lawyers in particular place great significance in their perception of the substantive expertise of a particular mediator candidate during the selection process. Many “purists” practicing mediation decry this emphasis, claiming that opinions on substance often get in the way of exploring potentially vital understanding across the table that might lead to more comprehensive disputes resolution. Contrast if you will…”The case got settled, and the parties vowed never to speak with each other again”…with…”The case settled, and the parties are still doing business.”
Personally I’ve been a proponent of both extremes from time to time, but at this moment I have to say “it depends”. Not every dispute coming to mediation is a “Group Hug Just Waiting to Happen”. But then, not every seemingly cut and dry case about money, truly is “just about the money”.
My point is, that you do not always know going in, as the mediator OR the lawyer for a party, what truly is driving the respective clients’ interests at that moment in time. What started a conflict, over time, might well be different from what drives one or more parties towards resolution [the crippling costs of litigation are perhaps too obvious, but often a factor]. I’ll continue this frame, and hopefully draw in some of the pre-mediation processes discussed in prior columns.