The Closer

A Mediation Newsletter August 2011

Mediation Leadership
by James Rainwater

My definition of leadership can be found at the intersection of initiative and opportunity. Attorneys, by nature or training, are leaders. Yet, leadership is not necessarily a position of constant control or constriction. Leaders must know when to stand aside while the process takes its course.

In mediation, leadership is the utmost quality required of the mediator. It takes a special skill-set to properly manage sparring parties, posturing attorneys, and convoluted statements. Control of the mediation conference begins once the attorneys/parties agree to use a particular mediator.

The mediator can exercise control by determining the conference’s venue – ideally a neutral place, such as the mediator’s office. The mediator should request that the attorneys submit any relevant documents, materials, and orders well before the scheduled conference. This is an excellent opportunity for an attorney to proffer the party’s position, concerns, and theories to the mediator.

During the conference, it is essential that the mediator maintain the smooth-running of the mediation, as well as maintaining the proper decorum. However, the well-seasoned mediator will allow the parties a fair amount of latitude, in order to establish their positions, voice their concerns, and perhaps, vent their frustration or anger. Like a good leader, the mediator should know when to intervene and when to let the situation proceed on its own.

Hesitant clients will remain hesitant until they feel assured that their concerns have been adequately addressed. Foisting a settlement upon a wary party will almost certainly derail any agreement in the last fifteen minutes. The leader-mediator needs to be cognizant of the subtle changes and energies emitted by the parties. Clients deserve impassioned attorney representation and strong, unbiased leadership from the mediator. Ultimately, it is the client parties who make the decision to agree or not agree. The mediator is there to ensure that all practical options have been presented and exhausted.

Rainwater Law