What is the job of a mediator? What criteria determines poor performance? Are mediators failing on the job?
Mediation is whatever you want it to be.
A few months ago a caller inquiring about my mediation training shared with me his research indicating to him that “mediation is whatever the practitioner wants it to be.” He was shopping for an approach and he would select a mediation training by what he wanted to do. Does this mean, as an industry, we produce mediators equipped to do what they want? Is the best mediator one who has a versatile approach which allows him or her flexibility to do whatever the mediator deems necessary giving the situation?
In many of the discussion boards I consistently hear a mantra that a good mediator applies whatever technique necessary given the case at hand. The more tools and techniques available the better the chance the mediator has to do his or her job. Some cases need a directive approach, some need a facilitative approach, some need a transformative approach, some require risk evaluation, some case evaluation, some parties need advising, etc.
But is this true? Should case dynamics determine mediator performance? What is the standard of quality control for mediators? Is there a way to know when a mediator is doing a good job?
Your purpose and your job are not the same thing.
The purpose of a mediator is to reach a settlement. The job of a mediator is to identify and explore the needs of the parties. As a mediator, your purpose is to reach a settlement. But getting a settlement is not your job. Your job is to identify and explore the needs of the parties.
If we confuse our purpose for our job, then good performance is measured by whether or not the mediator can identify a settlement solution; success means settlement. However, any mediator worth his or her “salt” can tell you it is possible to get a settlement and not do your job.
To identify and explore the needs of a party is to find their power-base. Doing so shifts the dynamics at the mediation table from a party working drastically to keep something bad out of their life to a party inviting something good into their life. The identified need is the power-base from which all good negotiation takes place and the centerpiece for clarifying any party’s BATNA. When a party’s need is not explored and identified communication dynamics stay positional.
Positional dynamics can invite poor mediator performance.
Positional dynamics of the parties can trigger a mediator to seek any technique, tool or style that could move parties toward settlement. However, when a settlement is written, and it does not meet a party’s specific need, positional dynamics will continue outside the mediation. There are many ways to reach a settlement. In fact, all the techniques listed above can produce settlement. Confusing your purpose for your job makes anything that will produce settlement acceptable (indeed, approved) practice. To rest quality control and performance standard on the ability of a mediator to obtain a settlement, seems to me, keeps the bar way too low. If we don’t maintain focus on doing our job, then we do a dis-service to the parties and to our industry.