What mediation skills matter most?

I would put listening top of the list. I think grasping the facts can help, I think being cheerful and energetic can help, but it's the work you do when the lift doors open and the client starts walking towards you and you meet them, and you begin to just harvest all the information about who they are, what they're feeling, what they're expecting and what they're worried about? And just picking all of that up on radar, making eye contact, getting linked up to them and making them trust you and share your confidence in the process, that's it.

Interviewer: What skill do you use more than any other?

Kind of contemplating this frequently enough, but it really comes down to one and that's, you know, these guys, I think listening and it sounds so simple really. And in certain ways it is actually, it is simple and you know, if you're curious enough or, you know, maybe nosy enough, it comes quite easily. But it can be challenging because, particularly when you're curious, you might want to add lots of questions and you might want to hear the next thing or ask this question or ask that question, and so sometimes you have to just remind yourself why it is you're listening and what direction you need to listen in or what you need to listen for. And I think maybe a better way to explain this is that listening is a kind of, it's a bit like your foundation, it's your foundational skill, but that then you build other constructs on top of it. So you have particular types of questions maybe, that then you listen to the answers of. You might reframe something, you might summarise something, and then you listen for what the impact of that is going to have been on the parties. So it's like it underlies everything, but then beyond that you have more active skills around, you know, summarising and asking challenging questions and reality checking and some of the negotiation skills around BATNAs and WATNAs and more passive skills around sometimes maybe holding the silence actually, and just stay with the silence or sensing when something's getting too much for somebody or, you know, needing to shift your position in the room or online to respond to a dynamic that's happening. But if I had to choose one, I think it would be listening.

Geoff, if we're talking about the skills that a professional mediator needs to bring in to the room, or needs to practise, or needs to have, what does he or she need to have, what's top of the list?

I think listening is clearly ... Any of these surveys that are done of parties involved in mediation, listening is somewhere at the top. That might sound easy, but actually it's not, especially for lawyer mediators, it's not. And I think the other thing is patience. I think a good mediator is patient, and knows the right time and the right intervention to make.

The way I look at this thing is that you may get a box of files, you may get several boxes of files, you may get a position paper, you may have the solicitor on the phone telling you that it's the strongest case of fraud he's ever seen in 40 years of litigation. When the client comes out of the lift, and you meet him or her for the first time that's when you start mediating. Only then, start getting a read of the body language, you start engaging with them, what's the mood; indignant, upset, angry, couldn't care less, whatever it may be, and that's when you start the job.

We can pick those apart, but I think in some, a good mediator has really good antennae, and absolutely knows all those things you just talked about. Body language, the vibe, the- whatever you like to call it, and they're just aware.

There's almost a cultural thing, I sometimes think- I'm afraid middle-aged men who come to mediations in London, let's be absolutely truthful about the commercial group we're dealing with in a awful lot of cases still, an emotional crisis for one of them has to be measured with the tiniest little deflection on the Richter scale because they just don't show emotion. They don't show emotion.

Yeah.

Other cultures come in, completely different story, but in London, with an insurance claims manager, whatever it may be, you're reading a very shallow tremor on the dial sometimes.

I would say that commercial mediations are surprisingly emotional in the sense that people ... Might not be their money, it may be a big corporate, but they're surprisingly personal.

Bill: Yeah.

And people take stuff personally.

I've had money claims where people say the the beginning, "it's not personal, Bill. It's just business", which is of course a line from The Godfather, significantly. I had this recently in a recent case of mine where somebody started by saying, "It's just not personal at all.

Yeah, yeah, yeah.

It's just money" Two hours later, inflammatory language, "I'm gonna sue them into the graveyard".

Yeah. That's why I think behaviour at the mediation table is so important, and you can change the outcome depending on the behaviour of the party. So I think lawyers have a lot to learn about how to present mediation. I think they are getting it. The mediation room is different from the courtroom, you can't just make a submission.

Just like the mediator, they have to listen too.

Absolutely. I often talk about a steel fist inside of a velvet glove, just have a different persona at mediation, and the good lawyers will have a mediation persona, and I presume, a court persona, but they can ...

In the States, they bring a different team. They'll have two. I did a big US sex discrimination case in London recently, and the Americans came across, and they had two lawyers who just did mediations. There was some saber-tooth character in the back room I wasn't allowed to meet, who was gonna tear chunks of meat out of the other side when it came to the trial. These were the nice guys. Two good police.

Well, that's the benefit of a big market, isn't it? The Americans have settlement council, but I do think, for lawyers at mediation, you do need to have street cred, people do need to know you'll fight this. If it doesn't settle, then absolutely, I'm front and centre of the courtroom. And I think that leads on to a question; Should barristers in our common law system, should barristers come to mediation or should it be just solicitors? I think it's a very interesting question, I don't think there is a right answer.

One of the things that we're taught as novice mediators, one of the first skills, is summarising and reflecting back and summarising what you're hearing from the parties. What's the purpose of that?

You want to reassure them that you've listened and taken it onboard. You want to make sure they understand you've accurately got it. And during the day, you're going to be their messenger a lot. You're going to be in their private room and they're going to be giving you words to take across to the other side. So the sooner they start trusting your ability to listen and remember accurately, the better, 'cause that's the skill, almost the main skill they think they're going to expect from you for the rest of the day. So, don't be frightened. Don't make a note continuously. But don't be frightened for the critical words to write them down, particularly when you get to the messaging stage.

Sabine: What is the single most important skill for a mediator to master?

A hard question, I think. I will answer it but mediators are a combination of a number of different skills, I often talk about DNA of a mediator. There's a big debate in the mediation community about whether mediators are made or they're born. My own view is, they're born, and they're augmented by the skills that one can learn. But the single skill that I would highlight is the ability, I think for a mediator to gain the trust and the confidence of the people at the table, including all the stakeholders, the lawyers, the insurers, the funders, the parties, but somehow you need to be able to you know, get their trust, get their confidence. How do you do that? Well you're authentic, you're energetic, you're transparent, all those things that are hard to talk about, to define, but they are there somewhere, that a mediator can do their job resolve the matter without any, without leaving a bitter taste in anyone's mouth, and I think that's the skill of a mediator. You know it helps to be a nice guy, but there's more going on than just being a nice guy, you know. People need to want to work with you and I think the market will single out the mediators who they like for a number of reasons, they're effective, mediators need to be closers, so it's no use doing all that and not getting settlements. So someone who, like me, earns their living from mediation, needs to be able to say, "I close most cases "that I've mediated." and there's various sort of benchmarks for that. But essentially I think, if you gain the trust, gain the confidence of those you're working with they will be much more open with you, not telling you their dark secrets and where they will settle for, but just be willing to trust you with your advice, your skills. I think one of the newer skills for a mediator is a coach, so I'm doing a lot more coaching in live mediations than I used to. So saying to parties, often in private, "How are you gonna say that? "I get what you mean, but if you say it like that, "I can tell you now it's going to push their buttons, "so do you wanna perhaps say it like this or like that--"

Sabine: That's actually interesting.

"Don't emphasise that point just yet. "Why don't you spend more time on this "'cause I know that's what they concerned with?" And the thing about a mediator is, we know what's happening in both rooms, so when we're giving that advice, we're not doing it in a vacuum, we know without breaching confidence, we know what might be more effective. So I think mediator skills, frankly are changing all the time.

So Bill, again often, people often ask me, you know, "What do you need to be an effective mediator? What are the attributes?" And again, that's a hard question. I just say, "Well I don't know, I'm just me. "You know, I bring me to the mediation."

To the extent that I see other people mediate, or I see mediation working, it involves listening.

Yeah, yeah I agree.

It involves energy.

Yeah.

I mean we can pick each of these apart. It involves listening, it involves energy, it involves commitment and the ability to give them confidence. You've talked about this a lot.

Yeah.

Confidence that you know what you are doing. That it's a good process. And it's all in the right place. Gonna be tough from time to time, but it's going to get there.

Yeah, I was doing something the other day and there's a QC in the room there was quite a bit of down time, and she said to me at the end "You know Jeff, I've been sitting here "trying to work out what you do." And she said, "What you do is you bring energy into the room "every time you come into the room." I thought that was a really good, big picture, kind of That's what mediators...

Gor, Gordon Strachan said you can divide football as into two categories, radiators and drains. So you want to get the drains out of the team. And, and I think it's even more true of what we do.

Yeah, yeah. And I think you know, energy. Optimism is a really important attribute. You need to be optimistic. I think professionally I'm optimistic, I think my wife would say in privately my personal...

Privately you're the opposite.(laughs)

You know, people pay us for our optimism, we keep it till the very end, even if things are looking...looking unlikely. Um, they , they, they need us to be out there in front.

Every- every now and then, well I don't want us looking for different, I'm afraid of what we'll get.

Well this is you.

Yeah every now. Don't you spice it up?

No

Afraid you are looking at a 12 week trial.

No. No, I'm a Pollyanna. Ah! _ Everything's always lovely.

(laughs)

Oh, no you got to look into the abyss every now and then.

Yeah, Yeah, no I agree. I think you've got to, got to walk them to the, to the edge, they lean over, they look into the abyss, and they decide are we going to hold hands and jump off or are we going to walk back and help each other. Is that?

Exactly.

Yeah

Exactly.

I love it.

Interviewer: How do you know which skills to use and when?

I think the best way to answer that is to use the analogy of learning how to drive a car. You know, when you're learning to drive, you very consciously have to think about accelerating, checking your wing mirrors, putting on the indicator, using the clutch in the right way, turning the steering wheel for the right amount of distance at the right time. And when you're starting off mediating, you're very conscious as well of using very open questions at the beginning, making sure you're doing a lot of very intensive listening, managing your opening statement or statements well, and then, using maybe reality checking and troubleshooting and brainstorming skills when it gets to option generation. But then once you've done that regularly, you don't do it so consciously anymore, it comes to you much more naturally. And it would feel the same way, it feels counterintuitive to put on an indicator when you're driving on a straight stretch of motorway, unless you're overtaking, it feels counterintuitive then to ask the types of questions you might at a beginning of a mediation when you're at the option generation or agreement drafting phase. So, I think you learn by practising consciously initially by thinking about what works. You will know if you've used a certain tool or skill or strategy. You will know if it hasn't worked because the parties will have reacted in a way that shows you it doesn't work. So you learn that, you learn that the same way you learned that pulling out into your next lane of traffic without checking your wing mirror is usually a pretty bad idea. And that then becomes intuitive after a while.

In your view, as a very experienced mediation lawyer, someone who's seen a lot of different mediators in action, what makes a good mediator?

There's whole raft of skills. They need to have read the papers. That's always a good start.

(laughs) Okay.

I think they need to have good personal skills. It's about listening and interacting and nudging but also good lawyers because they need to understand the legal risk that the parties are taking. They need a sort of humanity, so understanding, often the parties are massively unequal in their positions, whether it's money or if you have large financial institutions with a small claimant. You need to have to manage that. I don't know. I know the ones I like. (both laugh) And I can't really tell... But those are the qualities that they have. I think also, one of the complaints I sometimes have is that they're not interactive enough. Sometimes I do need a mediator to cool the other side out a bit or call us out or to test 'cause one can get very sucked into your own case and not see the wood for the trees. And actually, I'd like a mediator to say, "Actually, Sue, have you thought about that? "You could get really screwed on that point." And I'd go, "Oh. Maybe yeah, you're absolutely right."

It's interesting. It strikes me from what you say that you focus very much on personal qualifications, if you like, rather than professional qualifications.

Well, they have to be good lawyers, absolutely. If you've got a complicated legal dispute, you need somebody who understands the process, the arguments, where the risks are. You do need somebody whose experience in that you can trust, for sure. So they do need to be... And they need to have a... professional in the sense of confidence and knowing what they're doing. But it's difficult because if you're starting off as a mediator, you're invariably learning. Everything is about learning from experience, and every mediation you do, you learn what you not ought to do.

Never stops. (both laugh)

The questions you should never ask. I don't know. I did the CEDR mediation course. I was taught by Bill. And I got out the mediation handbook the other day. I was reading through, and I thought, "Oh, God, I probably didn't do any of this." And I don't know... There's a huge amount to learn. There is real skill in a good mediator, and I think it comes from doing mediations and mediating mediations and just building up that expertise. It doesn't mean that you're not doing a good job when you do your first one, but it...

Yeah, it's not a process where you can follow certain steps and you know it'll be all right. It's very dynamic and very unpredictable, and that's where the learning comes from, really.

But critically, being a good listener, I think. If you're not hearing where the parties are, you haven't got a hope.