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I’m fascinated by mediators. To be more precise, I’m fascinated by the best mediators. And, to be even more precise, I’m fascinated by mediators who consistently find ways to settle the most complicated and seemingly intractable disputes.
I call them “Master Mediators.” They are the full-time JAMS neutrals who handle the most interesting and challenging cases, their overflowing caseloads a testament to consistent success and the envy of aspiring mediators, and even some established ones.
What makes them so effective? What separates them from the pack? And how do they manage to parachute into one difficult dispute after another and bring the parties to resolution?
These questions, and others, inspired me to interview the Master Mediators — in person, in-depth and without attribution — about how and why they do what they do. Like Michelin star chefs explaining what differentiates them from thousands of other professional chefs, these Master Mediators dazzled and delighted me, making me rethink some traditional notions about how to mediate.
Meet the Master Mediators
A former stage actor who clerked for the United States Supreme Court. A male ballet dancer who performed with the famous Alvin Ailey Company. A woman without a law degree and an Ivy Leaguer who graduated cum laude from Harvard Law School. A former summary jury trial judge raised in the Midwest and a former litigator raised in Argentina and Israel.
I asked hard questions, many quite personal, and, like any good mediator, I persisted until I got full answers. Skilled mediators know the art of controlling information flow — how to procure relevant information and how, when necessary, to withhold information to advance the mediation process. In the end, each Master Mediator shared his or her practice secrets, personal foibles and unvarnished opinions on sensitive issues, often to my surprise.
While they agreed on a lot, they also disagreed on a lot, and those differences were often quite sharp. This blog series will explore their shared views and some ideas about what we can learn from their disagreements. Some of my conclusions may upend — or at least unsettle —conventional understanding about how and why mediation works.
Here is the first of my posts focused on the Mind of the Master Mediator.
Zeroing in on Zoom: What Good Mediators Really Think About Virtual Platforms
The completely unexpected and necessary pivot to online mediation arrived in mid-March, and I firmly believe that online mediation is here to stay.
March seems like an eternity ago, and I remember being quite nervous before conducting my first virtual mediation on Zoom, what I now call a “Zoom-Med.” I’m not a techie and, in retrospect, I now realize that I had become perhaps too comfortable mediating cases in person and at JAMS, where I almost always settled my cases and my clients always got a delicious lunch.
So, I was genuinely surprised at how smoothly my first Zoom-Med went, as well as the Zoom-Meds that followed. I’ve also been surprised by how much clients enjoy the Zoom-Med experience, despite their understandable initial apprehension.
I’ve mediated all types of cases on Zoom, and believe it or not, I now train lawyers on how effectively to participate in virtual mediations. While I’ve developed my own personal views on the limitations and long-term potential for virtual mediations, I wanted to test those views by talking with my busiest colleagues. I had a lot of questions and was really excited to learn their unvarnished views. As a group, the Master Mediators have used Zoom and other platforms to settle hundreds of commercial, employment, personal injury and reinsurance disputes.
Perhaps not surprisingly, my colleagues fundamentally agreed with each other on some issues and sharply disagreed on others. Some of those sharp disagreements may be attributable to their different practice areas or the exigencies of a particular case. My basic takeaway, however, is that they disagreed because they approach their work — and see the world — quite differently.
In this and future posts, I will share my interview questions and, using boxing terminology, provide a summation for the collective answers:
Split Decision (winner by majority)
Draw(no clear winner)
I will also provide some color commentary based on my own experience conducting Zoom-Meds.
Are Zoom-Meds as Effective as In-Person Mediations?
(Virtually) Unanimous Decision
Not surprisingly, each Master Mediator preferred to mediate in person. While mediations always involve disputed legal and factual issues, mediation is, at its core, a human process grounded in strong feelings, biases, partisan perceptions and expectations of fairness.
Mediators want to be in the same room with the human beings in conflict so they can connect with them, build trust and use their compassion and charisma to change an unproductive adversarial dynamic into a forward-looking, problem-solving one.
Despite an understandable comfort with in-person mediation, the best mediators know how to adjust and adapt, and that’s exactly what the Master Mediators are doing with Zoom-Meds. They understand that virtual mediation is better than no mediation.
Several of the Master Mediators speculated that Zoom-Meds could be more effective — and likely more enjoyable — if participants must wear masks and social distance when in-person mediations resume. I can imagine parties becoming hot under the collar and under the mask when tensions flare!
While most of the Master Mediators admitted feeling the same fear I did before my first Zoom-Med, they’ve adjusted their approaches by conducting more pre-mediation Zoom meetings with clients, and sometimes offering an optional practice session with the parties.
Front-loading the mediation process allows mediators to identify and more fully explore key issues and potential settlement barriers before conducting the mediation session, increasing the likelihood of an efficient, productive mediation. Front-loading the process also enables the Master Mediators to build credibility and trust with the parties, the bedrock of any effective mediation.
On balance, the Master Mediators feel increasingly comfortable with Zoom-Meds, with one suggesting that she’s settling cases more frequently and more efficiently. Another mediator observed that clients who are completely unfamiliar with the Zoom platform often build trust organically as they look for technical guidance as the process unfolds.
My colleagues also shared their views on some unexpected benefits of virtual mediation, including the ease with which clients can attend and participate, and their ability to do so without incurring travel or related costs. They agreed that Zoom-Meds can be more efficient and productive because they allow increased participation by clients with authority, such as insurance claims representatives, who may not be able to attend in-person mediations.
When clients are fully engaged in the negotiation process, good mediators can more easily identify real settlement barriers, as opposed to exaggerated ones used to fortify a negotiating position. The best mediators engage lawyers and their clients in conversations about how to overcome those real settlement barriers, often leading to more creative and durable agreements, as well as strengthened lawyer-client relationships.
Another unexpected benefit of Zoom-Meds is that people are often more direct and transparent with the mediator, sharing more honest information sooner about their priority interests and real bottom lines. They have also tend to be more courteous to adversaries, making the process a little less emotional and a lot more enjoyable. As one Master Mediator explained, “I’ve experienced a deeper sense of shared humanity and connection,” making the process more relaxed and creative.
As we make our way through this coronavirus pandemic, perhaps people will continue to put legal disputes into broader perspective. When parties bluff less, blame people across the table less, engage in less aggressive positional bargaining and more readily share information with the mediator, the process simply works better.
On the other hand, having a virtual mediation creates a heightened risk that a party can more easily end the process with a final offer and a threat to click a button and end the day. This risk can be mitigated if the mediator addresses it before the mediation by asking the parties to agree to resist any temptation to bail early. Still, effective mediators must stay alert throughout the process to identify any parties who may want to end prematurely so they can immediately explore and address their concerns.
So my own personal view that virtual mediations can be as effective as — and sometimes more effective than — in-person mediations was confirmed by the Master Mediators.
In my next post, I’ll address other virtual platform-related issues including Upper Body Language: Easier or Harder to Read, Are Virtual Backgrounds a No-No, and How to Talk With Clients About Zoom.
David S. Ross, Esq.,has been a mediator with JAMS for nearly 30 years. He specializes in complex employment and commercial disputes and has resolved thousands of two-party and multi-party cases, including many class actions. Mr. Ross regularly handles high-profile cases involving celebrities, politicians and CEOs of global corporations.
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