Professional Documents
Culture Documents
Goldberg (2005) The Secrets of Successful Mediators
Goldberg (2005) The Secrets of Successful Mediators
Goldberg (2005) The Secrets of Successful Mediators
Introduction
The key to mediator success lies in developing rapport with the disputing
parties. If the mediator is unable to develop rapport, it matters little how
proficient the mediator is with the many tactics that are espoused in the
mediation literature and taught in mediator training — success in bringing
disputing parties to a resolution of their dispute is unlikely.1 This is the
conclusion that I reached after asking experienced mediators how they
accounted for their successes. The overwhelming response given by more
than 75 percent of the respondents was that the key element in success-
ful mediation is developing rapport with the parties.
Methodology
The sample of experienced mediators was drawn primarily from the mem-
bership lists of two organizations, Mediation Research & Education Project,
Stephen B. Goldberg is professor of law at Northwestern University and has worked as a medi-
ator for twenty-five years. His e-mail address is stephengoldberg@law.northwestern.edu.
I’d like to ask your help on what may turn out to be an interest-
ing paper. In recent conversations with experienced mediators,
I have frequently asked, “How do you account for your success
as a mediator? What skills and techniques do you have that you
think enable you to get settlements?” I have found the answers
to these questions to be quite interesting and often somewhat
different from what one finds in the mediation literature.
That leads me to ask if you’d respond in writing to the above
questions . . . I certainly don’t expect a lengthy response, some-
where between one paragraph and a page or two would be fine.
I would, however, appreciate the most candid response possible,
not necessarily what you would say for publication, but what you
really view as your essential strength(s) and technique(s).
Results
Building Rapport
As previously noted, the overwhelming majority of the mediators (more
than 75 percent of them) stated that a central reason for their success was
their ability to develop rapport with the disputing parties — a relationship
of understanding, empathy, and trust. Among their comments were:
I should note that the comments of the mediators in this study are
based upon their own personal observations and reflections. Certainly,
the disputants or outside observers might view the mediators’ activities
in a different light, as the following excerpt from the research literature
indicates:
Conclusion
The best summary of the ideas set out in this article was provided by one
of the mediators. She wrote:
NOTES
I wish to acknowledge Professor Jeanne M. Brett for her sound advice and assistance on every
aspect of this article. Thanks are also due to the highly experienced and very busy mediators
without whose willingness to take the time to respond to my questions, there would be no article.
Finally, thanks to Northwestern University law student and Pritzker Faculty Research Fellow
Jammey Kligis for correcting citation errors and inadequacies.
1. Dispute resolution is not always the parties’ goal. They may want only a clarification of
their respective positions; they may seek personal transformation; they may seek improvement of
their relationship. Inasmuch, however, as most mediation occurs in the context of disputing
parties who seek a resolution of their dispute, achieving that goal is treated as success for pur-
poses of this article.
2. In one study of mediator behavior, the mediators went beyond acknowledging and
empathizing with the parties’ concerns. According to Deborah Kolb, the mediators in that study,
“seem[ed] to create a working impression of neutrality by selectively allying themselves with the
parties during different phases of the case. . . . In the accounts mediators give to one party of what
transpired in meetings with the other party, they often demean opposing members and their posi-
tions. . . . They suggest to whichever party they are talking to that they are an ally who shares its
views of the other side and can be counted on for support. . . . If all goes well, this selective bias
leads to an overall impression of neutrality. If the bias is unmasked, the mediator can become
quickly discredited” (Kolb 1985).
3. “[I]n-group identity [is] one solution . . . to the dilemma of trust. Common membership in
a salient social category can serve as a rule for defining the boundaries of low-risk interpersonal
trust that bypasses the need for personal knowledge. . . . As a consequence of shifting from the
personal to the social group level of identity, the individual can adopt a sort of ‘depersonalized
trust’ based on category membership alone” (Brewer 1981).
4. An interesting question is whether establishing rapport is less important for the evaluative
mediator who seeks to encourage settlement by predicting the outcome if the dispute is taken to
court or arbitration than it is for the mediator who makes no court or arbitration outcome
predictions. The responses in this study do not permit an answer to this question but are none-
theless of interest. Twelve of the respondents were labor–management arbitrators as well as medi-
ators; another respondent was a sitting judge who mediated cases pending in his court. While it
is unclear how many of these respondents utilized evaluative techniques in their mediation prac-
tices, each of them had the ability and credibility to do so. Nonetheless, twelve of the thirteen
referred to establishing rapport as one of their central techniques. The judge, while pointing out
the advantage of his judicial office, went on to say that his success in settling disputes was
ultimately a function of his ability to gain the parties’ trust and confidence:
[B]eing a judge helps. Although I do not wear a robe, the aura of the
courtroom, my chambers, and my judicial office provide me with credibility
and a perception of fairness. . . . I [also] believe that I have good people
skills. I am able to work with both sides and gain their trust and confidence.
This is crucial in maintaining momentum and ultimately providing a
recommendation.
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