Trust Is Everything

By John L. Watkins

Trust is almost everything in a mediator. I still represent parties in mediation more as a lawyer than as a mediator, and recently represented a party in a multi-party mediation. During the mediation, my client made an offer that was contingent on participation by another party on my client's side of the case. The mediator presented the offer to the other side without obtaining the participation of the other party. It was early in the mediation, there were excuses offered, and, at the end of the day, "no harm/no foul" probably applied. All of that said, I will be reluctant to use this mediator again.

As stated, trust is almost everything in a mediator. It is critical for the mediator to understand a party's position and to offer no more or no less than the party has authorized. It does not matter if the mediator thinks the position is unwise or that another position might be better. Of course, the mediator should be free to relay his or her concerns about the position to the party taking it in caucus. But the mediator is not empowered to impose a settlement, and is thus also not empowered to, in effect, take the offer out of a party's hands and reshape it, even for the best of subjective motives.

I think it is also important for a mediator to be upfront about his or her approach to mediation. I prefer an evaluative approach, but not one that is heavy handed. I think reality testing can often best be done through questions. If someone wants a purely facilitative mediator, I am not the right choice. My views on mediation can be found at http://www.watkinsmediation.com/ (click on the basic mediation and advance mediation buttons for various topics), and also at my law firm's website, www.ctflegal.com/mediation.html (click on the links at the bottom of the page for articles on basic and advanced mediation).