BY W. BRUCE WOLD, ESQ.
After more than thirty years trying cases on the West Coast, doing my best to represent the interests of one side or the other zealously, I embarked on my next career: occupying the “middle ground” between battling litigants. Even though I had participated as an advocate in many mediations around the country, and experienced most every mediation style and technique imaginable, taking on the role of mediator required significant adaptation and learning on my part. While my legal background gave me the proverbial “leg up” as a mediator, and the excellent training I received in the mediation training classroom was quite valuable, my years of on-the-job training in litigation—combined with my experience as a pilot—allow me to see the proper place of the mediator as the “middle man” in the mediation process.
The idea to write this piece came to me while sitting in a “check your ego at the door debriefing,” immediately following a formation flight of three Beech Bonanzas. On that particular day, I had been flying #2 and, in certain of the formations, flying with the lead aircraft on one side of me and #3 on the other side. As the one in the middle, I had a clear duty to each of the other pilots to fly responsibly and to support the overall mission. The purpose of the detailed and frank debriefing was to understand how well we had worked together, what mistakes had been made, and what could be learned to prepare for the next mission. Neither the mission nor the debriefing had room for ego.
As you can surmise from the photo, being the one in the middle requires preparation, concentration on the task at hand, and the trust of everyone on the mission. Everyone must have an unquestioned commitment to making things happen the right way. No grandstanding! For a mediator, each of these requirements merits recognition, understanding, and constant attention.
Just as a pilot’s lack of preparation or poor performance can endanger a formation flight, poor performance by a mediator can ruin chances for a successful mediation. A well-prepared mediator is better able to build credibility and trust with the participants, while a poorly prepared mediator will have difficulty generating trust and may create doubt in the minds of counsel and the parties as to whether the mediation mission will succeed.
Being unprepared is certainly not the only mistake a mediator can make. Even a well-prepared mediator can jeopardize the mediation mission by letting his or her ego become involved.
Certain issues tend to arise when one first shifts from the role of advocate to the central role of mediator. For example:
• One of the attorneys, or one of the parties, takes a position which seems silly or which, at best, is not supported by the facts or the law. Still proud (with good reason or not) of your cross-examination skills, and without due consideration of potential consequences, you venture in and take your best shot. Bam! You destroy your target and win the argument! Well, did you? What have you done to your relationship with your “victim”? What have you done to the mission? While on occasion such a dramatic incursion may be of assistance, a prudent mediator does so only with a full understanding of the risks associated with the effort.
• Your experience and success in a particular area of the law are legendary. The lawyers at your mediation have neither your experience nor your knowledge of the law and, in your view, are apparently not aware of some important legal issues which could hurt or help them. Do you assume the professorial role and educate them? If so, how? Do you share your wisdom with one side or both? With their clients present? You may be tempted to show how knowledgeable you are, or perhaps even to promote “justice,” but as a mediator, you venture into dangerous territory—and jeopardize the success of the mission at hand.
• Your new role as mediator puts you at the head of the table, often literally, and in the eyes of the participants. By virtue of your training and experience, you are adept at controlling debate and even conversation, especially among lawyers. You can ask questions to limit the response of even the most difficult politician. You are able to tell a war story supporting every point you wish to make. Doing all these things may have a time and place, but domination is usually not good listening, a primary goal of the effective mediator with a mission.
• You are comfortable on your feet, able to think clearly and quickly in response to most anything which would occur at the mediation. Certainly being mediator is easier than being a trial lawyer in trial, right? You don’t need to worry about not asking the right question, or about asking the wrong question, do you? Well, you’d better worry and have a good reason each and every time you choose to speak. Remember that the better you prepare, the better the chance you’ll ask the right questions, and only the right questions!
Just as when I fly formation, I try to keep these concepts—preparation, concentration, and an overriding focus on the mission—fresh in my mind each and every time I mediate. Take your place on the middle path seriously, check your ego at the door, always be a well-prepared team player, and watch those around you carefully. Mistakes have consequences!