Thursday, August 17, 2006

I am a mediator because ...

I am a mediator. I was a mediator even before I completed my first 40-hour mediation skills training course or my first mediation. I am a mediator because I believe conflict is counterproductive to meaningful progress in any arena and regardless of the issue. I believe that working together toward creative solutions to problems is a far better option than losing power over your choices and allowing a judge or arbitrator to impose a ruling.

Mediation has been defined as "An attempt to bring about a peaceful settlement or compromise between disputants through the objective intervention of a neutral party." The mediator is that neutral party who works to discover the underlying issues to a dispute and works with the parties to find creative solutions or workable plans that satisfy the needs and desires of all parties. For any of us who have divorced parents, or for those of us who have children, nieces or nephews, we probably have experience acting as a "neutral party," which simply means being truly neutral and unbiased in not favoring one over the other and recognizing the significant problems that could be caused in favoring one side over the other.

While I recognize that some people have difficulty in feeling and acting neutral under these circumstances, I am not one of those people. And I would venture to say that people with this difficulty probably would not have the desire to be a mediator, but that certainly does not limit them or anyone else from working with a mediator to resolve their own disputes.

The process of mediation is - or should be - unlike a court settlement conference in which parties are urged by the settlement conference judge to get the case off the court docket and resolved, regardless of how that is done, usually by splitting the difference between the positions of the parties or pressuring one side to compromise everything just to get the case resolved. Mediation truly is a process which is guided by the skilled mediator to allow for all parties to be heard in order for the mediator to successfully work with all parties toward an agreed upon solution that satisfies everyone's needs. It is similar to the difference between "fast food" and "slow food." The former is intended as a method to get alleged nutrients into your system, but which leaves you with an upset stomach and bad taste in your mouth. Meanwhile, the latter method has the same stated goal of getting nutrients into your system but provides healthier nutrients in a creative and healthy manner and which, at the end of the meal, leaves you feeling satisfied with no bad taste in your mouth and no sick stomach. Mediation is slow food.

Mediation requires good listening and communication skills, good people skills and, above all, patience. Recently, I spoke with an esteemed partner of a large San Francisco law firm before we were to give our respective presentations on Effective Marketing Skills for Young Lawyers for the Bar Association of San Francisco. He was curious about my mediation practice and I informed him of my background and how it led me to mediation. He mentioned that he has seen many judges become mediators after their retirement from the bench and that, in many cases, he could not imagine these former judges as mediators precisely because of the lack of patience exhibited on the bench. I believe that patience is one of the absolute most important characteristics for a mediator to possess, well above knowledge of a particular area of law. A mediator can educate himself or herself on a new area of law, but a mediator cannot learn the art of patience and listening or neutrality.

There are so many reasons that I became a mediator, even beyond my own internal pull toward conflict resolution and away from the world of what can be very ugly, gamesmanship litigation. Many of my reasons are based on the areas of law in which I have practiced and many are based simply on the litigation process itself. In general, the reasons that I became a mediator are the same reasons that I believe in mediation as the first stop in trying to resolve a dispute that cannot be resolved through direct communication. I believe in mediation so much that I have always included a mediation clause in my attorney retainer agreements with clients and in every comprehensive contract I have ever drafted for clients - whether that be a prenuptial agreement, marital settlement agreement, employment contract or real estate agreement.

Mediation makes more sense than litigation, costs less money, takes much less time and can be far more rewarding than a litigated result. More on that to come...

Paula M. Lawhon
Mediator & Attorney
San Francisco, California

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