What Makes a Good Mediator?

By Carolyn L. Rosenblatt, R.N., B.S.N., Attorney at Law

Is it taking the right kind of training? No, because then every trained person would be good at the job and we know that’s not true. Training helps, of course, but there’s more to it.

Is it knowing the law? No, because there are many wonderful mediators who are not lawyers. So, it’s not just about knowledge. Is it subject matter expertise if it’s not about the law? To some extent, subject matter expertise is very helpful and does contribute to being a good mediator. People tend to honor the suggestions of someone who has expertise. But it’s not everything, because we know that everyone who is knowledgeable in a field isn’t necessarily cut out to be a good mediator.

Then, what is it that makes a good mediator?

I think, based on participating in mediation over many years, both as an advocate and as a mediator, that a good mediator is largely a quality of character. It takes excellent listening skills, patience, the ability to see both or all sides of a dispute, and the ability to lead. If people were able to work things out by themselves, they wouldn’t seek mediators. Participants in mediation need someone to lead them to their own solutions without causing them to feel forced.

We know how it feels to be persuaded to do something and eventually to agree to do it. Most of us also know how it feels to be bullied or pushed against our will. A good mediator will persuade without forcing it, and urge without pushing to the point of being overbearing. That is a particular kind of leadership.

To me, one of the most important qualities a mediator needs besides leadership is that of being respectful of everyone, and being even-handed. If the mediator even hints of being partial to one side or the other in a conflict, the party who senses that is going to lose respect for the mediator. It’s pretty hard to persuade anyone to see things from a different vantage point if you lose their respect.

Another quality I value highly in a mediator is creativity in devising suggestions about how to reach compromises. Unconventional ideas can bear fruit. The mediator can come up with a tack no one else thought about before, as they were so involved in the dispute as to be stuck in it. Fighting doesn’t particularly lend itself to creativity.  Persistence is part of creativity.  When you hit impasse, you keep trying to figure out a new angle, to get the parties to see something differently, or try another way.

Finally, I think a great mediator puts people at ease, simply by good communication skills. There will be more on this blog about communication skills in the future, as it’s one of my favorite subjects. For now, let’s just say communication skills involve a mediator acknowledging what a person has said or tried to say, empowering people to express themselves honestly, and supporting efforts to move forward from where they started in the fight at hand.

Simply put, this quality of character we’re talking about here is a lot about being a nice person who expresses interest and attention to each of the parties. Add to that, a good mediator uses skill, techniques, effort, care, and the power of one’s presence to help disputing parties find their way out.

Certainly some of this can be learned. However, I’m not sure one can learn character. If you’re a mediator, or an aspiring one, look within. If you possess some or all of these things above described, you’re on the right track.

If you’re in need of a mediator, and looking for one, there is simply no way to assess these things without talking to the potential mediator. Ask if the mediator uses pre-mediation conferences. That means you get to talk to him or her before the mediation happens. Size the mediator up. Look for these qualities of character the best you can. Be assured you won’t see them on the mediator’s resume. It’s a “vibe” you get. Trust it.
© 2009 AgingParents.com

By Carolyn L. Rosenblatt, R.N., B.S.N., Attorney

What can a family do when the person who seems to be the focal point of a conflict refuses to mediate the dispute? Other than trying to persuade the reluctant one to try it, there is no way to force anyone to mediation. It is a purely voluntary process. Without cooperation from everyone involved, the chances of success are zero.

Sometimes, there is a misconception that the mediator is going to tell someone that they are wrong, or tell the difficult person what to do. Unfortunately, that shouldn’t happen in mediation. Mediators are neutral. That means, they don’t take sides. If the mediator tells the person in question that he or she is wrong, that immediately takes the mediator onto a side and out of the middle.

In my litigation career, I attended countless mediations as an advocate for my clients. I advocated for their positions. The lawyer on the other side advocated for her or his clients’ positions. The mediators who were good at the job of mediation invited each of us to look at the conflict (a legal case) from a different point of view. The mediator suggested a possible compromise, pointed out the weaknesses in our analysis or position, and often did exactly the same with the other side when we were in a separate room.

I also saw terrible mediators, whose work was so lacking in neutrality that I resented paying the mediator’s fee. One mediator took on my client and argued with him, heatedly, trying to get my client to change his viewpoint of the value of the case. That mediation failed.

Mediation of family conflicts is a special arena, which should be reserved for mediators who understand family dynamics and respect all or both sides. Big egos who try to force a change in thinking from the parties are likely to alienate them. Success at mediation of family conflicts starts with getting all parties, including the reluctant ones, to the table to begin the conversation.

Reluctant parties can change their minds. It happens at mediation every day. But no one will do that if he or she feels forced into it.

Learn more about mediating family disputes in How to Handle Family Conflicts About Elders, from The Boomer’s Guide to Aging Parents, available at AgingParents.com, in ebook, print, or audio formats.

I shudder when I see these situations. The parent thought, somehow, she was doing the right thing. Or dad wanted his kids to “work together”, even though they’d never done so in their lives before.

The parent appoints two children as “co”- powers of attorney for finances. Mistake!

When the aging parent gets too incompetent to make decisions because of dementia, or some other condition, the two siblings begin to argue and hassle each other about money. One wants to spend it on mom’s care. One wants to move property and money around (all to be done legally), make the parent poor enough to qualify for Medicaid, and not spend the money so that he/she can inherit it.

These are difficult situations to mediate. The sibling who wants to impoverish the parent so he or she can qualify for a Medicaid bed in a nursing home is looking for that inheritance, and not for what is best for the parent.

It’s not that every nursing home is bad. Some do a good job. But, many are unsafe and neglect is quite common. I know this because I’ve personally sued nursing homes for neglected clients. Three beds to a room are often the situation when Medicaid is paying. Private pay beds are expensive, but usually, a lot better. Some nursing homes do not accept Medicaid.

How do we help families negotiate these situations? We encourage them to research the nursing homes in the area, to visit them personally, to spend time there observing.

We help them explore all the options available. We encourage them to choose one of them to be the decision-maker and the other to be the back-up. That’s a lot cleaner way for the parent to set things up to begin with, but it doesn’t always happen that way.

Greed can drive a dispute pretty far. If your parent has set up his or her power of attorney for finances with two, instead of one decision-maker, and the parent is still competent to change this, talk about it now! It can get very messy later, if the two who are supposed to decide such important things as spending money on a parent’s care are unable to agree.

To learn more about sibling conflicts, visit AgingParents.com, for articles, and our free newsletter.