The psychology of ADR is often underestimated. The most critical element in any negotiation or mediation is trust — or rather lack of distrust. Mediation, in particular, is not just about compromise; it is about creative problem-solving in a non-threatening environment to come to an agreement that works for all parties.
Encouraging the disputants to give their full story and be heard while being fully present with them is an example of empathic listening. Empathic listening is the process of understanding other people’s perspectives and feelings through active listening.
Building trust with disputants is essential for the mediation process. Mediators can build trust by using empathy and emotional intelligence. Empathy allows mediators to anticipate the parties’ feelings and respond appropriately with positive facial expressions and body language. Empathetic responses from mediators show that they understand the party’s situation, allowing them to establish trust.
Allowing both disputants to tell their whole story in their own words also helps build trust between them and the mediator. The mediator can then ask questions or reflect on what they have heard from each party, showing that they were being listened to, allowing them to establish trust with the neutral.
Empathy encourages a closer relationship between the parties to mediation, enabling less of an adversarial approach.
Managing the tension between the display of empathy and the appearance of neutrality in an environment where parties can seek to transform your empathetic behavior into a role as their advocate is challenging. A mediator should be comfortable expressing emotion and be curious about a dispute’s emotional core. A mediator with high emotional intelligence is less likely to mismanage this emotional connection, and as a result, you are far more likely to help parties achieve their mediation goals. As Nigel Wright explains:
Neutrality, on the other hand, is something that should be non-negotiable.
Whatever the mediator’s background, you should have confidence that the
mediator will be impartial. Not only is this the bedrock of trust, which is critical in mediations, but it is also an ethical requirement of all Georgia Mediators.
Good mediators understand this, and parties should be wary of any party insisting on particular mediators without a reasoned explanation. Many defense lawyers
tell me that they always agree to the plaintiff’s recommendation, as in that way, they hope the plaintiff will listen to that mediator. This, of course, assumes the mediator is entirely neutral.
There is a skillset and temperament required to be a good mediator. The more apparent qualities are a strong command of the law, strong writing skills, and the ability to organize cases and facts, understand complex situations, develop a plan for handling them, and advise parties on how best to achieve a successful resolution.
The more subtle criteria are the ability to work with people who are under stress or feel wronged; ability to diffuse volatile situations; thinking and acting creatively in a mediation; common-sense; ability as a mediator to make a decision and move a case fairly, efficiently and cost-effectively with the flexibility to adapt to different situations. The most effective neutral has extraordinary listening skills, in-depth ADR experience and training, strong problem-solving abilities, and high emotional intelligence.
