If you’re a freshly minted mediator eager to hit the ground running, this post is for you. Fueled with excitement for alternative dispute resolution and ready to apply your skills and knowledge, where do you start? Well, you’ve certainly come to the right place. After searching for mediation opportunities in the midst of the Covid-19 pandemic, I was fortunate to participate as a shadow mediator in a multi-jurisdictional intellectual property dispute. Based on my own experience, I thought to share five pointers to encourage and help other budding mediators find their footing.
Put Yourself Out There
It’s long been said that “the first step is always the hardest”. If you’ve ever found it uncomfortable describing yourself in an email, rest assured, you’re not alone. Admittedly, it can be daunting to pitch yourself to an experienced mediator you would like to shadow or be mentored by, especially if it is someone you may not personally know. In the process of sending out emails, consider the same seriousness, commitment and professionalism when crafting what you want to say. As your practical experience with mediation is likely to be limited at this stage, it can be helpful to share your experience in mediation competitions, workshops, or conferences. Just as parties do in their opening statements, provide some context, and shed light on why you are reaching out to a particular mediator or looking to assist with any preferred area. It may also be useful to have a referral from someone you have trained or interacted with during your mediation accreditation process. Where possible, consider proposing the option to meet over coffee or by videoconferencing. This develops a stronger human connection and functions as a two-way street to create value for yourself beyond the limits of email, while also familiarising yourself with any expectations of the mediator and their practice. Whatever the outcome, remember to be courteous and respectful of the mediator’s time. Even if the mediator may not currently have capacity, take it as a positive learning experience that leaves room for you to be considered in the future.
Preparing for the Mediation
Once you’ve landed a mediation opportunity, dig deeper into the heart of the dispute. Even if parties are generous and ply you with plenty of background information, it can be useful to conduct preliminary research on any finer points so that you have a better understanding of the salient issues. In a commercial matter, being aware of each party’s operations and the industry in which they operate can be valuable, particularly if it has some bearing on the matter raised for mediation. In my session for example, the dispute concerned a product produced by one of the parties and spanned a multi-jurisdiction distribution arrangement. As I understood what the product was and where it was retailed, I could better visualize how this related to the matter and avoid being confused by what parties were referring to.
Whatever your role at the mediation, it is also helpful to refresh yourself on the mediation process and the different tools and techniques that are available. To bridge any time gap between your last training session and your upcoming mediation, it might be worth revisiting established texts such as The Mediator’s Handbook, to solidify your understanding of what you have developed during training. This can also be a timely opportunity to keep up with new developments and publications. One example is the recently published Models for Mediation, which considers almost 60 different models that can be applied in mediation. While you are likely to receive practical advice and guidance from your mentor-mentee relationship, updating your knowledge base and exploring additional resources can enhance your overall learning process.
Be a Part of the Process
Once the mediation commences proper, introduce yourself and your role at the mediation. Fret not if you’re wondering what you can contribute, even if you might not be running the show. For starters, it can be helpful to assist with administration matters, such as recording which parties are in attendance as well as the start and end time of the mediation. If the mediation is taking place on web conference platforms such as Zoom, offer to facilitate the breakout rooms and monitor the chat function so the mediator’s focus is not detracted from the live issue. In my case, I had the benefit of an experienced mediator who made an active effort to involve me in the process from the get-go. As each mediator you encounter might have different expectations, it can be valuable to discuss your role and learning outcome ahead of the actual session.
Live and Learn
Several hours into the mediation, it may be tempting to tune-off and settle for a purely inactive role. Remember, you’ve come not just to observe, but also to develop your skillset and evaluate your experience against what you know. To share a personal example, I set three goals for myself prior to the mediation, namely:
- To observe the mediator’s style;
- To compare what I had learned in training about the mediation process with what the mediator applied in practice, and
- To come up with questions for the mediator.
I found this to be useful as it kept me engaged with different aspects of the mediation. Further, it was fascinating to reflect on how my own mediation style compared or differed from what I was observing. By taking note of a similar or different approach as applied in practice, this was invaluable in refining my mediation toolkit.
During one of the breaks, I asked the mediator about some questions I had observed during the process. For context, the question pertained to whether a joint-session or shuttle-mediation approach was most suitable for the ongoing dispute, as we seemed to have encountered an impasse. By asking the question, this helped me to gain a richer perspective and better understand the reason for going with one approach over the other. I also found it important to ask if the mediator had any questions for me to think about. As we were mid-way into the mediation, having the benefit of these questions in advance gave me time to link my response to the live developments taking place.
No doubt, it can be quite daunting to search for opportunities to gain practical mediation experience. As we pick ourselves up and rebuild in these challenging pandemic times, I encourage you to reach out and make the bold step in searching for ways to develop your newfound skill and passion in mediation. Even if starting small, adopt an open mind and turn each situation into an active learning experience for yourself. For those still unsure of where to start, a good place to begin can be with local pro bono initiatives. Alternatively, YMI has launched a Mediation Mentorship Framework encouraging field experience with the objective to support the next generation of mediators. Once you’re ready to give it a try, take heart in knowing that fortune favours the brave.