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Cheat Sheet

Success as a Mediator For Dummies

From Success as a Mediator For Dummies by Victoria Pynchon [with Joe Kraynak]

To achieve success as a mediator, you need to be able to talk the talk, walk the walk, and show everyone in your market just how good you really are. You'll need to understand the mediation process and the fundamentals of being a good mediator. As with any business, you need to generate business, so follow some basic tips on finding new clients.

Grasping the Mediation Process

Having a structure in place helps ensure that parties stay on track and progress toward a resolution for their dispute. The process isn’t always linear, but it does have several stages that go something like this:

  1. Convene the mediation.

    Contact all stakeholders and their attorneys if they have legal representation.

  2. Introduce the participants.

    Have the parties and other participants introduce themselves.

  3. Explain confidentiality and your role as a neutral.

    Assure the parties that nothing they say in mediation can be used against them in the court of law and that you will remain neutral.

  4. Set the ground rules.

    Establish guidelines for polite conversation, or help the parties establish their own.

  5. Make an agenda.

    Help the parties draw up an agenda that breaks down the issues to be resolved and the interests to be served.

  6. Let each party tell her side of the story.

    In a litigated dispute, this may be the first time the parties have had the opportunity to tell their stories.

  7. Ask questions to clarify the issues.

    After each party tells his story, ask open-ended questions to obtain more details that will illuminate or reveal unspoken party interests.

  8. Brainstorm solutions.

    Assist the parties in coming up with possible solutions that serve each party’s interests. Your goal is to “expand the pie” so the parties have more options than money alone.

  9. Choose or negotiate available solutions.

    Using the available solutions, help the parties come to an agreement that serves as many of each party’s interests as possible.

  10. Close and memorialize the agreement.

    Assist the parties in putting the terms of their agreement in writing to make the agreement more durable.

Exploring Mediation Fundamentals

To be a master mediator, you need to master certain fundamental skills, strategies, and techniques. The following are all traits of a well-trained mediator:

  • Anchoring: An anchor is any relevant number (or idea) that enters the negotiation environment. The party who puts the first number on the table, for example, anchors the negotiation in her favor throughout the course of the negotiation.

  • Appealing to higher values: Using shared beliefs or principles to reach agreement, such as both parents’ desire to do “what’s best for the children.”

  • Asking diagnostic questions: To get the whole story, probe each party with open-ended questions that call for narrative (as opposed to yes/no) answers. These questions always begin with Who? What? When? Where? Why? and How? or Tell me more about that.

  • Bracketing: The use of hypothetical offers and demands to narrow the gap that separates parties without requiring either party to commit to a number. For example, “If Party A were to increase his offer to $75,000, would you be willing to lower your demand to $100,000?”

  • Distributive bargaining: A negotiation in which the parties bargain over who gets the biggest portion of a fixed pie of benefits. Even if you’re facilitating an interest-based negotiation, eventually the enlarged pie of benefits must be distributed among the parties.

  • Forming contingent agreements: Adding “If . . . then . . .” language to a contract to alleviate a party’s concern over a future event that may undermine the party’s interests.

  • Framing: Change the parties’ perspective to something more positive. Mediators often reframe the parties’ dispute from an adversarial contest to a problem-solving exercise and from the identification of who’s right to the search for solutions that make everyone happy.

  • Interest-based negotiation: A negotiation in which the parties identify each other’s interests (needs, desires, preferences, priorities, fears, and appetite for risk) and then seek to reach an agreement that serves as many of those interests as possible.

  • Logrolling: Giving something that’s low-cost for one party but high-value to the other party in exchange for something that’s high-value to the first party but low-cost for the second party.

Generating Business as a Mediator

To be a successful mediator, you need to be successful, commercially. Consider the following strategies for generating business as you begin your career as a mediator:

  • Attend conferences and events that expose you to your mediation and market communities. Attend at least one group event every other month.

  • Claim your online business listings. Make sure you have a listing on Google Places and Yelp, claim the listings, and then flesh them out with additional content, including your website or blog address.

  • Join and serve in organizations that expose you to your mediation and market communities. These may be mediation, industry-related, or community organizations. Be active in the organization. Take a leadership role to raise your profile.

  • Keep in touch with your clients. The best place to look for new clients is through your current clients. Keep in touch with them via e-mail or regular phone calls. Checking in once or twice a year is usually sufficient.

  • Launch a website, blog, or both. You need to have an online presence, and having a website or blog is an important first step.

  • Pass out and collect business cards. Pass out business cards to everyone you meet, and collect their cards. Ask if they want to receive your newsletter and whether they prefer e-mail or standard postal delivery.

  • Post press releases and distribute newsletters. Write articles that are relevant and of value to your market and use the Internet to post and distribute them.

  • Spread the word via social networking. You should have a Facebook page dedicated to your mediation business, along with a Twitter and LinkedIn account. Get involved in LinkedIn discussion groups relevant to mediation and your market.

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