V. Qualifications for an Effective Mediator

Mediation is an interdisciplinary profession. Mediators have varying backgrounds and are not exclusively drawn from any specific profession. Generally speaking there is no mediator licensing or certification processes in the United States. However, over the last fifteen years there has been a great deal of inquiry into the area of mediator credentialing. When seeking a mediator, most lawyers/parties in the United States look for mediator candidates who not only have a good understanding of the process but also those who have been trained in the basic 40 hour mediator training course. Other qualifications that are considered by the parties or the attorneys should include: education, advanced training in mediation and other dispute resolution areas, and experience in particular areas of the law or other fields ( like engineering, environmental policy, accounting, construction, architecture, oil and gas, etc.). Requisite skills of a “successful” mediator include appropriate training in mediation techniques, capacity to conduct informal but orderly sessions, ability to identify issues, and “people skills/communications skills.”

VI. Preparing for and Executing an Effective Mediation Process

A. It is very important in preparing for mediation that all participants, the parties as well as their lawyers or representatives understand the general process. Although mediation is characterized by its flexibility, taking shape in a variety of models, general stages should be present in most instances. The mediator’s approach or style may manifest

Copyright 2008 Mina Akins Brees page 7

itself in a variety of different ways during the mediation process, e.g., direct, non-direct, or somewhere in between. The mediator may conduct the entire mediation as a joint session or meet separately in caucuses for most of the process. Or the mediator might meet with the attorneys/representatives of the parties without their clients to determine the status of the negotiations. Notwithstanding, the various segments of the mediation process, there are certain commonalities which are general observed. With regard to preparation, it is critical that the lawyer instruct his/her client not only about the process but objectives and expectations regarding the outcome of the mediation process.

B. General Concepts of the Mediation Process:

1. Set the Stage with the self-introduction of the mediator, parties and their

counsel, mediator’s description of the mediation process, opening statements by counsel outlining the issues in controversy. This is

usually done in a joint session with all parties and counsel present;

2. Gather Information which usually occurs in individual or caucus sessions

where the mediator listens to the parties and counsel explain their

positions and interests and ask questions to determine as much

information as possible about the disputes;

3. Frame the Problem or Issues by condensing the discussions and

disclosures made by the parties & their counsel and be sure

they agree with the statement of issues in dispute;

4. Generate Options by asking the parties & their counsel what they

want to achieve in the mediation or what would resolve the issues

in dispute;

5. Bargaining & Negotiation between the parties with mediator

facilitating the discussion which generates the terms of a possible

agreement; and

6. Writing an Agreement or Closure of the mediation process. If the parties

reach an agreement, the mediator should prepare a written

agreement which sets forth the terms of the agreement between the

parties using the language of the parties or their counsel which the

parties will sign prior to leaving the mediation session. If the parties

fail to make an agreement, the mediator can let the parties know that there is an impasse and attempt to leave the mediation session restating the items the parties did agree upon which may be an encouragement for the parties and their counsel to continue to mediate and negotiate in the future.

Copyright 2008 Mina Akins Brees page 8

C. Mediation Model

Various authors and trainers have outlined the various stages or concepts of the mediation process. These may range from three, four or five-stages to one with ten or more stages. The majority of models set forth similar basic concepts and recognizes the inherent fluidity of the process. For example, a three step very basic mediation model would include: (1) an opening and explanation of the process; (2) bargaining and negotiation between the parties with mediator facilitation; and (3) closure. However much more would be happening during the process itself.

For educational purposes, the process can be separated into nine distinct stages, all of which should be present in nearly every mediation. In addition, four more components of the process are considered optional. While these four optional stages are generally considered important to the mediation process, they frequently occur as part of another stage. Of course, resolution may also be reached at anytime without all of these steps. Employment of these optional stages will depend upon the parties, the nature of the matter, and the mediator’s style. The basic model is as follows: