Who’s Afraid of Little Old Me? an Exploration of a Mediator’s Influence

A mediation critic claims “mediators have no teeth”. This is to suggest that mediators have no power. The thinking being that a mediator’s lack of decision making renders them without authority.

Mediation is a process of self-determination for the parties participating in it. The mediator is a neutral facilitator, not an outcome imposer. For that reason, a mediator’s settlement rate is as misleading a statistic as a pitcher’s wins in baseball. Baseball fans know that a pitcher cannot earn a win without their team scoring runs, a task the pitcher is not involved in. Likewise, whether or not a case settles in mediation extends beyond the work of the mediator. The parties make that decision, and settlement is not always the right outcome. A pitcher can fail to pick up a win despite an extraordinary performance.

Extending the range of analogies about what a mediator does to tour guide, master of ceremonies and interrogator, there are many facets of a mediator’s work. The lack of outcome imposition can lead to a lack of appreciation of the influence of the impartial process facilitator unable to offer any settlement guarantees, yet increasingly regarded as the best person to see when dealing with a dispute.

To consider the extent to which a mediator has power, let’s consider three roles the mediator plays…

The Mediator as the Expert

Mediators can bring an array of expertise to the navigation of conflict.

Process skills can foster a collegial environment for conflicting parties to engage in the chance to work together. Mediators with subject matter experience in the area of the dispute can be called upon to offer an evaluation of the case.

While the mediator’s views are not binding, the views they share typically influence what disputing parties decide to do. When it bursts a bubble of fantasy to ground one into reality, the mediator’s expertise can help those in dispute as they select their best path forward. The mediator does not impose a decision; yet, the parties become better informed with their aid. This is quite helpful and makes it incorrect to suggest mediators have no influence. Mediators are uniquely positioned, their power derived from the distance they have from the conflict as a neutral facilitator who is not imposing a decision or impacted by the outcome of the dispute. Mediators equip parties experiencing a dispute to make their own decisions.

The Mediator as the Circus Leader

The mediator leads the mediation process. They offer structure to the proceeding, control who speaks and when during it to help focus the conversation.

Emotions – of those directly impacted by the conflict and their legal representatives – can impede the momentum of a mediation. Feelings sometimes get in the way of constructive dialog. While a degree of emotional expression at mediation is often beneficial, balancing this with grasping the chance to look forward is the essence of what a mediator does. In the course of this, mediators naturally influence how the process unfolds.

The Mediator as the Fear Monger

The power play here is not in the mediator guiding the process or applying subject matter expertise to the consideration of the conflict. Here, the mediator brings fear. Typically done privately, each disputant receives a message focused on the holes in their position. This sheds doubt on the outcome that one is hoping for. Often, the mediator can say things to people experiencing conflict that their legal representatives, colleagues and allies will not – consider the lack of confidence in success at trial that a mediator can express which a party’s lawyer cannot. This fear mongering is helpful when it is honest and respects the free will of the parties to select their own path forward. It becomes problematic when it embraces a settle at any cost mindset and intimidates. When taken too far, it becomes bullying and is not mediation – hence the need for a trained professional.

When done properly, the fear mongering role of a mediator can be quite powerful. Serving to draw consideration to the risks involved in passing on the opportunity to decide your own outcome and give that control to someone else, whose decision cannot be guaranteed. A mediator need not have subject matter expertise to raise these associated risks. This fear mongering aspect of a mediator’s work draws on their curiosity and the identification of what is unknown. The underlying influence is drawn out of the mediator’s very lack of decision-making authority.

Responding to the allegation of mediator toothlessness with a line of the song from the latest Taylor Swift album that inspired the title of this column, the mediator responds “but my bare hands paved their paths”. Rather than say mediators have no teeth, I suggest it would be better said that mediators have teeth but don’t bite. Mediation offers the safety net of not forcing an outcome upon you, yet your mediator may show you their teeth to assist in a fulsome and practical consideration of how to address the conflict. Should this make you fear mediation? Only insofar as you want to keep your fairytale, unrealistic view of how your dispute will end!