I remember reading a piece by a newspaper columnist who described the process by which someone in that field can finally claim to have mastered the trade. The aspiring newspaper columnist starts with a head full of ideas. He might even have rough drafts or outlines for many weeks’ worth of columns in a bottom desk drawer. But after about a year of doing the column, all of those ideas are going to be exhausted, and the columnist will have nothing left in the storehouse to draw from. Around that time, the columnist is going to be facing a looming deadline with no idea what to say. And that is when any newspaper columnist worth his salt begins to prove that he knows what he is doing. The columnist still has to file the column no matter what.

I can relate to this analogy partly because I have been publishing a blog on mediation for about four years now, which I try to update weekly. I live in fear that I will run out of new ideas. I’m also facing a deadline right now—to finish this very article. However, this feeling or position—that of a writer on deadline with no idea what to put on paper— resembles the position of a mediator in the midst of a broken down negotiation who has run out of suggestions.

Getting beyond impasse is a popular subject for mediation training, and most mediators have listened to seminars or lectures filled with tips and tricks for keeping the mediation going when the parties have just about given up and are heading for the door. Many of these techniques can be effective.

Every mediation trainer will tell you:

IT’S GOOD TO HAVE AS MANY TOOLS IN YOUR TOOLBOX AS YOU CAN

because you never know for sure what
might be effective.

And they are right. But what happens when the mediator has run through the grab bag of tricks, or when all the participants can smell another trick coming a mile away?

At that point, the mediator can send everyone home. But if the mediator refuses to give up, the only tool in the “mediator’s toolbox” is whatever remains of the mediator’s initial will to persevere and hope for resolution.

I recently participated in a seminar with Ken Cloke, one of Southern California’s great thinkers and writers on the subject of conflict resolution. Ken didn’t teach this group of mediators very many new techniques for breaking impasse. He just got us comfortable with the idea of impasse as a natural state, with exploring the sources of conflict rather than simply trying to squelch it, with getting beneath the surface concerns of parties to reveal deeper truths. He reminded us that the most important tool a mediator can bring to the mediation is “your authentic self.” He urged mediators to remain present and remain interested because the parties eventually run out of patience with games. Whereas if a mediator has demonstrated that he or she has listened to and understands the parties’ concerns and genuinely cares, the parties will eventually trust the mediator to take them beyond impasse to resolution.

Or as George Burns put it, “Sincerity is everything. Once you can fake that, you’ve got it made.” But seriously, faking it is dangerous. Parties tend to figure out if the “authentic mediator” is not in fact sincere. A mediator must have a genuine desire to continue working with the problem, even after everyone—including the mediator—has run out of suggestions and ideas. The mediator’s genuine desire to reach settlement may be the only tool in the mediator’s toolbox that counts in the end.

A mediator must look within oneself
and keep going, no matter what.


By Joe Markowitz

Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association. Website: www.mediate-la.com/