Choosing a Mediator

The profession of Mediation is a very recent phenomenon with the practitioners gravitating to it from other "professions of origin." Each Mediator has his or her own values and perspectives which determine how they conduct Mediation. These values and perspectives also seem to correlate with their "profession of origin" and can be beneficial or detrimental in Mediation depending on the disputing parties, their issues and objectives. Some of the "professions of origin" and their tendencies or typical approaches to Mediation are listed below:

·         Accountant, Business Management & Other Specialty Mediators

·         Attorney Mediator

·         Clergy/Christian Mediator

·         Counselor/Therapist Mediator

·         Our Style of Mediation 

Accountant, Business Management & Other Specialty Mediators

There are few Accountants, Business Management & Other Specialty Mediators and they may be better referred to as Consultants or Advisors.  While these “experts” know their area of specialty, they may not be as versed in communication skills, creative problem solving or respecting the Parties right to develop their own solution and agreement.

Attorney Mediator

Lawyers are trained to understand both sides of a case so they can effectively rebut the other side while advocating for and achieving a judgment desirable or acceptable to their client. The judgment is the goal. Lawyers tend to use Mediation as a form of settlement negotiation where the two sides try to obtain their desired judgment without full litigation. This approach to Mediation, like a trial, is also adversarial, with both sides seeking their desired judgment with as little compromise as possible. Because of this adversarial mindset, Attorney Mediators typically use “Caucus Mediation.”

“Caucus Mediation” begins with each side performing an exhaustive “Discovery” (gathering information, interviewing witnesses, probing through records, and preparing their cases for trial), frequently costing each side thousands of dollars. Only after completion of this “Discovery Process’ is the case ready for Caucus Mediation. The Mediator then obtains "position statements" from each Party's lawyer (which may or may not be shared with the opposing side) before the Caucus Mediation begins. After a brief introductory session with everyone present, each of the disputing Parties and their attorney are placed in separate rooms and the Attorney Mediator “shuttles” back and forth between the Parties with messages, proposals, counter proposals and other information until a settlement agreement is reached.

In each Caucus session, the Party and his or her lawyer (more frequently the lawyer) communicates with the Attorney Mediator, explaining their side of the controversy, defending their side's position, and discussing various options for settlement. Then the Attorney Mediator and the Party’s lawyer decide exactly what should be shared with the other side. The process is then repeated in the opposing Party's caucus room. The process can take many hours - almost never less than six or eight hours, frequently as long as 15-18 hours or longer.

Clergy/Christian Mediator

Clergy/Christian Mediators tend to be rather “Black & White” in their thinking with strong opinions of what is “right and wrong” in a wide variety of situations. In most cases, these are sincerely caring people who want what is best for everyone; however, they may be so convinced concerning what is “right and what is wrong” they will try to influence the path of the Mediation so as to produce a solution acceptable to them as well as the Parties. They may even try to direct the Parties to a specific conclusion and try to “convert” the Parties to their convictions. Christians have good moral and ethical standards and personal characteristics that are desirable in a Mediator as long as the Christian Mediator is controlled personally by his or her Christianity and does not try to impose it on the Parties or the Mediation process.

Counselor/Therapist Mediator

Many of the best Mediators have Psychotherapy or Counseling as their "profession of origin." The skills and training they bring to Mediation allow them to be sensitive, compassionate, non-judgmental and results-oriented as well as able to understand the disputing parties (perhaps even better than they understand themselves). These Mediators typically use “Facilitative Mediation.”

“Facilitative Mediation” begins with a brief introductory session with everyone present and may follow with a short caucus session where the Mediator speaks privately with each side before the Mediation formally begins. The Mediator then brings the Parties together and facilitates the communication, insuring a safe and courteous discussion of their differences as the Parties discover a mutually acceptable or desirable solution.

Unfortunately, some Therapist Mediators find it difficult to resist the temptation to return to their counseling profession, lapsing back into a therapy mode with lengthy discussions about the disputing Party’s feelings and how they got to this point. It is important for everyone involved in Mediation (both the Parties and the Mediator) to remember Mediation is not a form of, or a substitute for, counseling. Counseling is appropriate when the Parties are willing and able to communicate, but can benefit from the assistance of a professional in doing so. If counseling is appropriate and desirable, Mediation can be a beneficial adjunct to counseling, but Mediation should never be substituted for or confused with counseling.

Mediation, on the other hand, is appropriate for those Parties who, for one reason or another, are unable to resolve a problem (or a related set of problems) on their own. While Mediation is not therapy, it can be very therapeutic. Sometimes Mediation eliminates the need for counseling when the Parties agree on a set of rules or guidelines requiring the Parties to treat each other with the common courtesies and considerations they would show to a complete stranger.

Many of the best Mediators are former therapists, despite the potential of an inappropriate diversion into personal issues. The Parties will be able to determine if the prospective Therapist Mediator will be a “Good Mediator” rather than a “Frustrated Therapist” by ascertaining who owns the problem and who will determine the solution. A Therapist “Diagnosis a Disorder” and “Prescribes a Treatment” or solution; whereas, Mediators facilitate the Parties clarification of the problem and the Parties discovery of the appropriate solution. A “Good Mediator” understands he or she is an outsider, remaining concerned with the process while not becoming involved in the conflict.

  
Our Style of Mediation

While we are Christians and we personally desire to be increasingly more like our Lord and Savior, Jesus Christ, we also believe it is God’s job to convict, change or control others. If we are asked, we are happy to share our personal opinions which we try to keep in conformity with Scripture, but we do not try to run other people’s lives.

Our lead Mediators are Jan and Richard Shively who frequently work together as co-Mediators:

·         Jan has a “Profession of Origin” in the business world in Management Development and Employee Training for a large International corporation.

·         Richard has a multi-faceted “Profession of Origin” that includes Executive / Life Coaching, Clinical Psychotherapy, Addictions Therapy and Teaching. He earned the Doctor of Psychology (Psy.D.) and Doctor of Philosophy in Pastoral Care Theology (Ph.D.) degrees and has over 25 years of experience in mediating disputes.

We use “Facilitative Mediation” with features of Caucus Mediation, Transformative Mediation and Non-Binding Arbitration when appropriate:

·         Facilitative Mediation brings the Parties together as the Mediator(s) strive to ensure a safe and structured environment in which the Parties clarify the problem between them and develop a mutually satisfactory solution.

·         Caucus Mediation separates the Parties while the Mediator(s) speaks privately and confidentially with each side. This feature is utilized when the animosity or intimidation is at a level where the sides are unable or uncomfortable working together side-by-side. We “Caucus” with each side until they are ready and willing to address the problem together in the same room. 

·         Transformative Mediation uses the same skills and process as “Facilitative Mediation” to accomplish a different outcome. While Facilitative Mediation seeks to solve a specific problem or set of problems, Transformative Mediation is less concerned with the “problems” and more concerned with the relationship. For example: two people are employed in the same department and are having difficulty working together. They can solve their list of complaints today, but they will have a whole new list tomorrow unless their attitudes are transformed. This transformation occurs when they develop a better understanding of each other which, in turn, improves their working relationship. This is the goal of Transformative Mediation.

·         Non-Binding Arbitration may be requested by the Parties just before an “Impasse” may terminate Mediation. In Arbitration, the Parties argue their point before an individual known as an Arbitrator, who forms an opinion concerning an appropriate settlement of the dispute. If the Arbitration is “Binding” the Arbitrators Opinion is imposed on the Parties who are required to comply. We may provide “Non-Binding Arbitration” if the Parties request our opinion on the matter, but, our opinion is essentially only a suggestion the Parties can accept, if they choose, as their agreement or as a basis for an agreement they will continue to develop.

For a more complete and specific description of our Mediation process, see the Specifics of Mediation section of this website.