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| Avril Hasselfield |
There are several considerations that are weighed by both sides when choosing a mediator, but not having an extensive background in a particular area should arguably not be a dealbreaker.
Clearly, the best-case scenario is a subject matter expert who is also an expert mediator and while it does help to have a solid background in the topic at hand, I believe the process depends on an understanding of litigation and all the nuances of mediation but not necessarily on the most in-depth knowledge on the subject.
The point of the exercise is to get people to a settlement by moving things along as smoothly as possible, and a good mediator works at that. It is the mediator’s job to remain neutral and impartial while bridging the interests of two opposing parties to formulate a solution that has merits for both sides.
The goal is to create a space where the two sides are confident that their position is being represented so that they can find common ground.I often remind my clients that my main role is not to value their case. The lawyers on all sides have already done that. My job is to find where those valuations can overlap.
Opposing parties are looking for a resolution. They want a mediator they either like and/or respect. If it is both, then even better. Usually, they will seek out someone they know or someone with a good reputation.
Having an intimate knowledge of the subject matter in dispute is one more piece of the puzzle. Of course, there is value in it, but mediation is about litigation, which has universal threads that run through it.
Mediators do not have to know the specific details of every issue, again that is what opposing counsel is for. Mediators should understand the court system and what happens if the matter goes to trial and how a court might interpret the issues.
While having a grasp on the subject matter can be helpful, there are always new areas and decisions to know and research in advance. I practice a lot of disability insurance for instance, and there are certain things that you cannot learn ahead of time without having prior experience, such as how tax treatments and release language will be dealt with. There are always nuances you encounter depending on the situation.
While it is not always necessary to be a subject expert, there are certainly advantages to it. Not having an extensive background in the matter can slow the process because the lawyers might need to explain to the mediator how things work or sometimes it’s the mediator walking new counsel through the area of law.
Experience is the best teacher and after more than 20 years in practice I have developed an extensive background in many areas of law. I have been both plaintiff’s counsel and defence counsel and understand the issues from both sides, but there will always be more to learn. It’s the nature of the profession.
A good mediator is characterized not only by what they know but more on how they practise.
People skills are vital, and I do my utmost to convey the right balance of affability and authority. I bring a great deal of positive energy to an experience that can be extremely stressful.
Many times, when people are positional, they are angry and frustrated, but I work to make it a positive experience or at least a positive outcome. The common thread I have found with successful mediators is that they are amicable. If you have the right qualities, people will respect and listen to you and they will be more inclined to work with you when you counsel them.
Being a subject matter expert can bring added value to the process, but you still have to instill confidence that you are helping everyone. A resolution is always possible. It is a matter of what the experience will be like for everyone.
After a successful result everyone is often a bit outside their comfort zone. One of the most important attributes a mediator has is their ability to assure all the parties that they reached the best settlement possible.
Subject knowledge is helpful but not 100 per cent necessary. You have to continuously develop yourself in order to follow the law and build your reputation as well as your success.
Avril Hasselfield is a partner at Results Mediators.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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