Experience vs. Education in Mediation

Experience vs. Education in Mediation

Bill Shakespeare’s Hamlet pondered whether it is better to be or not be- dead that is. And I pondered whether it is better to be or not to be more experienced mediator or trained in mediation. Let me tell you what prompted this internal monologue.

At a recent bar function, in the midst of almost uniform respect and kindness, was a mediator with something he had to tell me. He said (that he thought) my limited experience precludes me from being a good mediator. I will not tell you his name but I will tell you what it rhymes with. On second thought, I’ll skip that.

I asked him why. His response had all the pomp of the Gettysburg Address. I know Kerry Brown and he, sir, is no Kerry Brown. He said that his years and years and years and years of experience as a litigator served as mediation training in how to persuade plaintiffs of the value of settling and avoiding ongoing litigation.

I thought to reply with, “again, how many years of experience did it take for you to  figure that out?” But I didn’t think of that until after he left. I did say that his message to plaintiffs is an important one. It is a message I wrote about it in my article Moving Past Good Mediating.

I carefully considered the importance of experience vs. training and came to four conclusions.

  1. Effectiveness CAN improve from experience.
  2. Effectiveness DOES NOT improve from repeating bad habits.
  3. Effectiveness CAN improve equally from MEDIATION TRAINING.
  4. You need BOTH training and experience.

Experience can improve effectiveness and usually does. With practice, so much of what we do in life improves as we learn from different situations we are exposed to. I can write better (yes, this is better), umpire better, and parent better.  And I agree that, of course, experience improves a mediator.

At least that is usually the case. Experience does not always help. I still stink at singing, dancing, and decorating, although I have a lot of practice in each. When it comes to mediator skills, years of practicing less than effective mediation methods can leave the mediator with very polished but very mediocre skills.

On a side note, experience in the practice of mediation tends to be quantified in terms of years of experience. Years are not the the best units of measurement though because many mediators are practicing attorneys who practice this field as a sideline. A mediator’s number of cases is a better measurement.

Mediation Training is perhaps a more important means of developing effectiveness. The value of training cannot be understated. That may sound self-serving and it is. But it is nonetheless true. The value of my expanded mediation training cannot be understated. Consider other disciplines. If you do not have proper training, all the experience in the world will not create it. Consider dentistry, dance, or I.P.O.’s. You better have proper training.

Earl McClure exemplifies the value of mediation experience. With years of mediating banking and security disputes, he has become the standard of excellence in his field of mediation.

John Paul Jones, on the other hand, is the quintessential trained mediator. His expertise extends from neurolinguistic programing to clinical critiquing exercises. He has trained over 2,000 judges as a faculty member of the National Judicial College. And he provided me with much of my mediation training.

Which is more important: training or experience? Neither. They are both essential so their ranking is moot.

Some areas of practice call for more mediation training while other call for more mediation experience. A personal injury mediation usually has narrow issues. The settlement amount is generally the main topic with only brief consideration given to other issues such as witness credibility. Little mediation experience is required to gain a thorough understanding of a MVA w PI cases. A mediator’s job is to create comfort, trust, and urgency These are skills which are easily attained in mediation training.

What is at issue, the relative importance importance of each issue, and the order in which they are discussed are rarely contended.

A breach of contract mediation is at the opposite end of the spectrum and is likely to include more complex issues such as mitigation, joint liability, varied valuation techniques, and the continuation of several types of relationships. Here, mediation experience is more important than mediation training. A business background does help the mediator with understanding and creativity. But it is experience in mediation that helps the mediator organize and effectively facilitate a more complex process. Mediation Training is not of as much value because the complexities call for mid-mediation adjustments as opposed to a checklist or formula approach learned in training. It takes practice to discern true underlying positions, the relative importance of each sub-issue, and how to gain agreement on the topic order which will best facilitate settlement.

In summary, advanced mediation training should not be discounted. Nor should the merit of experience in thousands of cases be discounted. However, strength in both areas is needed.

 


 

Email: Keith@KeithBradyLaw.com

 

 

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