In franchise disputes, lawyers and parties who search for mediators drill down on mediators’ professional backgrounds, often paying the most attention to whether potential mediators have previously represented franchisors or franchisees. Despite the fact that lawyers generally don’t choose their clients – clients choose lawyers – everyone, or most everyone, wants to know if a lawyer being considered as a mediator in a franchise dispute has been identified with franchisors or franchisees.
It’s no different if you are a personal injury lawyer – who has represented plaintiffs or defendants? With respect, and acknowledging my own past as frequently a lawyer for franchisors, this question misses the mark. A very successful mediator first taught me the fallacy in using past representation as a screening/elimination process when I was a Philadelphia lawyer more than 20 years ago. Tom Rutter, may he rest in peace, was one of the best plaintiffs’ lawyers in town for 30 years and then became one of the best mediators in town for another 20. What Tom had was way more important than past affiliation with one side or the other. He had the trust of the parties and their lawyers. He showed that trustworthiness as an overriding characteristic is more useful as a predictor of success in a mediation than which side of the proverbial “V” a potential mediator happened to represent in a prior life. Put another way, can you and your client put your trust in the mediator to do all within his power to help the parties move to resolution? More importantly, how does the mediator earn your client’s and your trust?
Mediation literature supports the importance of trust in the mediator as a decisive factor in the success of mediation. In an article published in 2009, Jean Poitras, an associate professor of conflict management, asked the question “What Makes Parties Trust Mediators? Dr. Poitras knew that other academics had identified the importance of trust between mediators and parties as a key element of a successful mediation experience. What Poitras and his colleagues didn’t know was why people trust mediators, or more to the point, what is it that mediators do, or don’t do, that leads participants to place their trust in them.
What separates Poitras’ work from other commentators on the role of trust in mediation is that he sought to identify empirically what parties value about mediators – not what mediators or lawyers believe makes a good mediator, but what the parties themselves identify as the factors that lead them to trust (or not trust) a mediator. Following his team’s review of questionnaires of parties who had completed a total of 105 mediations with 36 trained, full-time mediators, he identified from the parties’ perspective 5 key subject areas of interaction with the mediator that parties emphasized in answering why they trusted (or didn’t trust) their mediator:
1. degree of mastery over the process,
2. explanation of the process,
3. warmth and consideration,
4. chemistry with the parties, and
5. lack of bias toward any party.
Please note that Dr. Poitras’ analysis was based on client interview – not lawyer interviews. So while a client may have some information from counsel about a mediator’s history, the impressions that Dr. Poitras tracked were the clients’ impressions of what was happening before their eyes. And for each client, those impressions were based on what he or she experienced during the entirety of the mediation process; that is, being present with all one’s senses for the mediation’s duration. For lawyers with prior mediations under their belts, they likely experience the time spent with a mediator much differently than their clients do. As I tell lawyers, they have many cases, usually the client only has one – this one. It’s no different with mediations. Clients’ perception of the fairness of the process is based on how they experience the mediator’s treatment of them in what likely is the only mediation they will ever have – have they been heard, have they been treated with respect and understanding, does the mediator treat them as equals?
A word about Dr. Poitras’ sample of participant responses from which he drew his conclusions. All of his mediations took place in Canada between employers and employees; all of them concerned employment disputes; 82% of them ended in settlements; and roughly half of his participants were associated with employers and the other half we associated with employees; almost 60% were college graduates (more 4 year universities than 2 year programs) and the rest were high school graduates; and roughly 70% were women, and the average age of all sampled participants was 40.
And another word about what degree of trust in the mediator Dr. Poitras’ sample in fact had experienced – slightly more than half (about 56%) experienced what they considered “an above average level of trust” in the mediator, and the balance (about 44%) reported a “below average level of trust.” Notwithstanding that division, approximately 82% of all cases ended in an agreed resolution.
It may be obvious that lawyers want their clients to have good experiences in mediation. What is surprising though is that a client’s degree of satisfaction in mediation is not only measured by outcome. In fact, as Dr. Poitras’ work points out, happiness with the process – was it fair for me? – is often ultimately more important to the client than the outcome. After all, any agreement is voluntary, so the mediator isn’t usually responsible for the outcome, at least, in any direct way. But the mediator does have responsibility for the process. In meeting that responsibility, the mediator serves the parties. For the lawyers who represent clients in the mediations, after all is said and done, isn’t it often the client’s degree of satisfaction with the mediation process, irrespective of outcome, that determines how happy the client is with his or her lawyer?
For those of you who want to read more of Dr. Poitras’ study, it is available at https://doi.org/10.1111/j.1571-9979.2009.00228.x. I intend to follow this article with additional ones that speak further to each of the subject areas that his paper identifies – degree of mastery over the process, explanation of the process, warmth and consideration, chemistry with the parties, and lack of bias toward any party—and what it is a trusted mediator can do to improve the mediation experience for the participants and with it improve the likelihood of a successful result.