Mediation: The Art of Learning

At Judicate West’s recent annual retreat, Judicate West mediators from across California gathered to share what they have learned and how their mediation skills have evolved over the years.  It was a great opportunity for me to learn from many of the top mediators in the country.  I share some of what I learned below.

We spoke about the importance of listening.  One colleague stressed that even when speaking, a mediator must listen.  A mediator must always be conscious of the social cues the parties and counsel are expressing. An effective mediator understands the parties’ goals, motivations, and tolerance for risk, among other things.  No doubt, a listening mediator is a better mediator.

One very experienced mediator noted that it is the mediator’s – and not the parties’ -- role to declare when the parties have reached an impasse.  It is very common for a party to threaten to leave mediation in response to a too high or a too low settlement offer.  Nothing stands in the way of reaching a settlement more than a party leaving mediation early.  Taking the responsibility of declaring an impasse away from the parties keeps the parties focused on the job at hand – reaching agreement.

One colleague stressed that many cases cannot be settled in just one day.  Often when a case does not settle on the first day of mediation, the mediator feels discouraged.  Instead of feeling discouraged, one should look at the first mediation session as providing the necessary path towards settlement.  Parties often need more time properly to evaluate their case, or more authority may be necessary to settle the matter.  The fact that the case does not settle on the day of mediation does not mean that the case will not eventually settle.  It is the mediator’s job to persevere and remain resolute until settlement is reached. 

We all agreed that one can learn from each mediation.  It is that continuous learning that makes the mediation profession so rewarding.