Arthur Pressman, Nixon Peabody

In franchise disputes, lawyers and parties who search for mediators drill down on mediators' professional backgrounds, often paying the most attention to whether potential mediators have previously represented franchisors or franchisees. Despite the fact that lawyers generally don't choose their clients—clients choose lawyers—everyone, or most everyone, wants to know if a lawyer being considered as a mediator in a franchise dispute has been identified with franchisors or franchisees. It's no different if you are a personal injury lawyer—who has represented plaintiffs or defendants? With respect, and acknowledging my own past as frequently a lawyer for franchisors, this question misses the mark.

A very successful mediator first taught me the fallacy in using past representation as a screening/elimination process when I was a Philadelphia lawyer more than 20 years ago. Tom Rutter, may he rest in peace, was one of the best plaintiffs lawyers in town for 30 years and then became one of the best mediators in town for another 20. What Rutter had was way more important than past affiliation with one side or the other. He had the trust of the parties and their lawyers. He showed that trustworthiness as an overriding characteristic is more useful as a predictor of success in a mediation than which a potential mediator happened to represent in a prior life. Put another way, can you and your client put your trust in the mediator to do all within his power to help the parties move to resolution? More importantly, how does the mediator earn your client's and your trust?

Mediation literature supports the importance of trust in the mediator as a decisive factor in the success of mediation. In an article published in 2009, Jean Poitras, an associate professor of conflict management, asked the question “What Makes Parties Trust Mediators?” Poitras knew that other academics had identified the importance of trust between mediators and parties as a key element of a successful mediation experience. What Poitras and his colleagues didn't know was why people trust mediators, or more to the point, what is it that mediators do, or don't do, that leads participants to place their trust in them.

What separates Poitras' work from other commentators on the role of trust in mediation is that he sought to identify empirically what parties value about mediators—not what mediators or lawyers believe makes a good mediator, but what the parties themselves identify as the factors that lead them to trust (or not trust) a mediator. Following his team's review of questionnaires of parties who had completed a total of 105 mediations with 36 trained, full-time mediators, he identified from the parties' perspective five key subject areas of interaction with the mediator that parties emphasized in answering why they trusted (or didn't trust) their mediator:

• Degree of mastery over the process,
• Explanation of the process,
• Warmth and consideration,
• Chemistry with the parties, and
• Lack of bias toward any party.

Each of these areas of interaction provides the mediator with an opportunity to build or destroy trust. For the most part, parties (noninstitutional, nonrepeat player parties, that is) come to mediation wanting to trust the mediator. They are hoping that he or she will help them settle their dispute in a way that is meaningful to them. By paying a fee, they are literally invested in the process but unsure what it involves. It's all up to the mediator—it can't be, you pays your money and you takes yer' chance. In truth, that's too much like going to trial before the next judge or jury up. In mediation, the parties and lawyers pick you; you don't pick them. Being a mediator is a huge responsibility that begins with understanding what the parties want from you —more than a resolution, it's fairness and an opportunity to be heard.

Please note that Poitras' analysis was based on client interview—not lawyer interviews. So while a client may have some information from counsel about a mediator's history, the impressions that Poitras tracked were the clients' impressions of what was happening before their eyes. And for each client, those impressions were based on what he or she experienced during the entirety of the mediation process; that is, being present with all one's senses for the mediation's duration. For lawyers with prior mediations under their belts, they likely experience the time spent with a mediator much differently than their clients do. As I tell lawyers, they have many cases, usually the client only has one—this one. It's no different with mediations. Clients' perception of the fairness of the process is based on how they experience the mediator's treatment of them in what likely is the only mediation they will ever have—have they been heard, have they been treated with respect and understanding, does the mediator treat them as equals?

A word about Poitras' sample of participant responses from which he drew his conclusions. All of his mediations took place in Canada between employers and employees; all of them concerned employment disputes; 82 percent of them ended in settlements; and roughly half of his participants were associated with employers and the other half we associated with employees; almost 60 percent were college graduates (more four-year universities than two-year programs) and the rest were high school graduates; and roughly 70 percent were women, and the average age of all sampled participants was 40.

And another word about what degree of trust in the mediator Poitras' sample in fact had experienced—slightly more than half (about 56 percent) experienced what they considered “an above average level of trust” in the mediator, and the balance (about 44 percent) reported a “below average level of trust.” Notwithstanding that division, approximately 82 percent of all cases ended in an agreed resolution.

It may be axiomatic that lawyers want their clients to have good experiences in mediation. What is surprising though is that a client's degree of satisfaction in mediation is not only measured by outcome. In fact, as Poitras' work points out, happiness with the process—was it fair for me?—is often ultimately more important to the client than the outcome. After all, any agreement is voluntary, so the mediator isn't usually responsible for the outcome, at least, in any direct way. But the mediator does have responsibility for the process. In meeting that responsibility, the mediator serves the parties. For the lawyers who represent clients in the mediations, after all is said and done, isn't it often the client's degree of satisfaction with the mediation process, irrespective of outcome, that determines how happy the client is with his or her lawyer?

Let us remember that most mediation participants come into the experience “cold”—most usually, they are not veterans of prior mediations and their only pre-mediation education is what their lawyers have told them to expect, based on the lawyer's experiences. But unlike a party in mediation, a lawyer as a professional is interested primarily, if not exclusively, in outcome—a settlement that meets the lawyer's parameters, whatever they may be. As the old expression goes, “a pick pocket only sees pockets,” so too a lawyer who only is interested in whether the dispute has settled near her terms may not see much more beyond outcome. For a participant, however, especially one new to dispute resolution, the experience of mediation is more nuanced, and anxiety-fraught, than it is for a lawyer. Whether the participant trusts or distrusts the process may be entirely dependent on how she or he experiences the mediator.

The success of mediation as a process demands its acceptance by participants as a fair and efficient way of dispute resolution. That can't happen without the parties' trust in the mediator, which is not a given that comes with a mediator's appointment. It's up to the mediator to win the trust of the participants. And one of the ways the mediator accomplishes that goal is through demonstrating mastery of the process. The first step in the mediator's trust-building is welcoming the participants to the process and explaining to them the mediator's experience with the mediation process. As many times as the mediator has given his introduction, and as many times as the lawyers have heard it, it's usually the first time that the mediator has addressed the lay participants, and first impressions matter—thoughtful, thorough, and most of all unrushed—the parties, and not the lawyers, are the mediator's audience and it is critical for the mediator to keep that in mind.

The parties want to know that the mediator has helped other parties reach resolution and is committed to helping them do the same. If the mediator has experience in similar cases, letting the parties know that reassures them they have come to the right person for help. If the mediator has spoken with them or their lawyers before the mediation, mentioning that again at the mediation shows the participants the mediator's commitment, professionalism and familiarity with the case.

Of the more than 100 respondents interviewed in Poitras' study, more than 35 percent reported that their mediator had inspired trust by his or her professionalism, familiarity with the case, reference to prior mediation and self-assurance. All of these qualities, referred to collectively as the “mediator's mastery” of the process, were a commonly reported factor in participants' reaching a conclusion that they held a high level of trust in the mediator.

The sometimes rush to get into caucus sessions may lead a mediator to dispense with or give short-shrift to the opening joint session. Short-cutting or hijacking the opening session in favor of caucuses has its risks, however. A party who doesn't see the mediator dealing with the other side, misses out on experiencing the mediator's even-handedness and control of the process. Many mediators fear joint sessions because parties' emotion and hard feelings may be on display. IMHO, that's no reason to dispense with a joint session.  Those emotion and hard feelings will follow you into the caucus room, and if unexpressed during the joint session, may boil over in caucus, and more importantly, deprive the mediator of a crucial opportunity to display mastery over the process by hearing and responding to the emotion in a fair, even-handed way in both parties' presence.

Arthur Pressman is a mediator and arbitrator of franchise and other commercial disputes, an adjunct faculty member at Boston University School of Law where he teaches ADR, negotiation and professional responsibility, an occasional expert witness in franchise-related legal issues, including lawyer malpractice, and senior counsel at Nixon Peabody, resident in Boston. He is also a former Philadelphia lawyer, having been a principal at Abraham Pressman & Bauer and shareholder at Buchanan Ingersoll. Contact him at [email protected].