Chances are that as a neutral we’ve all heard it before, “how much experience have you had with this type of case?” or even, for some of us who began our careers relatively early, “how old are you?” These questions can be terrifying, especially for neutrals just getting into the game. The latter question is probably more jarring, because it implies assumptions about our abilities based on our chronological age, but both questions have a common point. When a client or their counsel ask us these questions, their underlying interest is most likely, “I want to know that I can trust your abilities, because this case is important to me/my client, and I want to be able to leverage your skills to move forward.” Of course, once established most neutrals do their work on a referral basis anyway and so there is usually an implied level of trust one or both parties have placed in them by choosing them, but for new neutrals – who may take cases on an assignment basis – the dynamic is quite different. Many times parties will have never met or interacted with a new mediator before the actual mediation session, and naturally there will be instances when clients or counsel will ask about the mediator’s experience level. Some parties may gracefully ask about the mediator’s “background” generally, while others may ask more directly, but either way these questions speak to a fundamental “tool” we as mediators need in order to effectively guide the mediation process –the trust of the parties we are guiding.
And it’s because these questions speak to the core issue of trust that our handling of these questions can make all of the difference in a successful mediation, and in our ability to build a reputation as a new neutral. But questions about experience aren’t often addressed in schools and seminars on mediation. In fact, of the several mediation trainings I have attended, I have never heard the subject broached once… So what to do? Are there effective means of fielding questions such as these, so that parties’ fears can be assuaged and so that new neutrals can move forward in their mediations? Luckily there are precedents out there, we just have to know where to look.
Mediators are not the only professionals who have to occasionally field questions that challenge their status as professionals, and thus other fields can inform our approach of how to handle these sticky situations. For instance, psychologists are trained to answer questions about their qualifications briefly and in a straightforward manner. The rule is, “be honest and be brief.” For instance, “I have conducted over 150 mediations, and of those about 15 pertained to wrongful termination claims [or whatever topic-area the current case may entail].” Actually, psychologists are even more hamstrung in what they can say about their lives outside of session because of an extra level of distance they must maintain from clients. As mediators, we are much more free to openly discuss what roles we have taken before the present case, so long as we do not violate previous agreements of confidentiality. A good rule of thumb when asked about our experience level as mediators is to be direct and to be brief – long explanations can come across as defensive, and parties will eventually tune out. But, after all, parties do have a right to know that their mediator does or does not have experience in the topic areas relevant to their case. At the end of the day, it comes down to how comfortable you feel sharing your experience or lack thereof… and I’d like to suggest that we focus for a minute on the “lack thereof” part of that sentence. What if you have not conducted any mediations similar to the one you are about to begin? Should you simply tell your clients that you are treading on new ground? Should you only share the information if asked?
One of the biggest pitfalls I have seen new neutrals fall into is the fear of being completely open about their lack of experience. They think that, “if I am completely open about my lack of experience, I will never be taken seriously.” In reality, the opposite is often true. Sure, there will always be lawyers and clients who balk when they hear that their mediator has never done a case similar to theirs, but most parties and counsel understand that mediators need to learn their trade at some point… just like everyone else. Second, it is reasonable that just because a new mediator has not mediated a particular type of case does not mean they cannot do so successfully, and most parties will at least give the mediator the benefit of the doubt. Third, most new mediators aren’t going to be mediating any “blockbuster” cases when they first begin anyway, which means that the mediation venues a new mediator finds themselves in (say, a local government courthouse conducting mandatory pre-trial mediations) are likely going to be accommodating toward new neutrals. The attorneys and clients on both sides of the table of a new mediator are likely going to understand that relatively inexperienced neutrals may be handling their cases, and will at least wait to see how the mediator does in-session. Attorneys may be more attuned to how well the mediator is doing if they know the mediator is inexperienced, but as long as the new mediator does his or her job well it is likely neither party will have a problem.
It’s also important to realize that when parties ask you about your experience it’s most likely not a personal affront or attack, even if it feels like one. As mediators we are trained to direct and guide confrontational questions and behaviour between parties, but it can be a shocking experience for new mediators when they sense a confrontational question directed that them. Some attorneys or clients may seek to exploit any perceived weakness or naivety in a new mediator, but most will just be concerned about achieving their clients’ goals. If a party asks you about your experience level, take a second and remember their interests – try to focus on the fact that they are hopefully there to find settlement, and that they are likely just gauging how confident you are in yourself… Which brings me to my final point.
The most important thing you can do as a new mediator is cultivate a healthy confidence in your ability to mediate successfully. In two words, “just breathe!” As with any new endeavor, starting is always the hardest part, and that mainly because of the mental barriers we erect for ourselves. Many new mediators lack well-defined confidence in their art – that is, they haven’t had enough of what psychologists call “mastery experiences” (successful mediations) to build a foundation of confidence in their ability to mediate. Building confidence in ourselves as mediators takes time, and to do that you have to trust in your abilities and remain open to learning as you go along. Over time your confidence will grow, and with your confidence will naturally come parties’ confidence in you.
Always remember that everyone at the table in mediation has interests at stake: As a new mediator you want to be perceived as competent and helpful so as to foster future business; but, the clients and attorneys are likely just as nervous about the outcome of their case as you are, even if they don’t show it. And because of their nervousness, both parties to pre-litigation mediations usually look for signs that the mediation will succeed, and will have more confidence in you if you have confidence in yourself first. Be patient with yourself, and try to portray a calm, collected demeanor even if deep down you are working to feel out the process as you go. It’s okay to be nervous – allow yourself to be – but focus that nervous energy into an ability to think critically about your role in the current case. Do this, and you will have taken a giant mental step towards not only being able to calmly answer questions about your experience, but also toward portraying the confidence in your experience that you will need to keep parties at-ease.