A. Have the Aura of a Peacemaker

A good mediator should understand the importance of having an aura of peace about her. The moment she enters the room for the initial joint session, her very presence should begin to still the turbulent waters. Parties enter the process with anger, animosity, frustration, bias, and pride, which often prevent them from looking at their cases realistically, thereby making settlement more difficult. The presence of the peacemaker should help calm these emotions and assist the parties to focus on resolution.

In order to truly be a peacemaker and directly impact the emotional atmosphere of the settlement conference, the mediator should adopt a peacemaker’s mentality.[87] She cannot be in an angry or aggressive mood and expect to still the troubled waters of others. The mediator, therefore, must not only be prepared concerning the facts and law of the case, but should enter the process with a positive and uplifting attitude.[88] This is particularly true in difficult mediations where there are deep-seated, emotionally charged issues.[89]

B. Be Patient

A mediator must possess and exhibit extraordinary patience throughout the process. If the mediator loses her temper or in frustration makes a sarcastic remark or observation, the mediation may end. She must be patient not only with the parties, but also with counsel.

The mediator must sense how fast she can move a plaintiff down and a defendant up. If either is not ready, the mediator should patiently respond to concerns they have before seeking further movement. If a certain amount of venting must occur before a party is ready to proceed ahead, this should be permitted. The mediator needs to be an effective and positive listener.

Perhaps the most challenging display a mediator can face is the attorney who seeks to manipulate her. Some attorneys believe that if they can intimidate the mediator, she will be easier to manipulate. The attorney may threaten to terminate the process and leave or may accuse the mediator of bias or lack of objectivity. In such instances, the disciplined peacemaker will not react to these challenges. She will not show anger, intimidation, or frustration, but will allow the attack to play out and patiently keep the mediation on course. When challenged, a mediator should always remember what she is about—she is there to work with and be supportive of the parties and counsel. In this regard, two things should be kept in mind. First, to defend herself, or to lash out at the attorney in front of the client, is a fatal mistake. Instead, she should agree with the attorney and be supportive of her in front of the client.

Second, no matter what happens or what is said, the mediator should exercise all the discipline she has and not react or show displeasure. If she signals even the slightest intimidation she will be playing the attorney’s game and the latter will probably continue in her efforts. Sometimes a little humor can break the intensity of the moment, such as, “I am only the mediator, and I am not the one to shoot.”[90]

Date: 2015-01-02; view: 621