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The Art of Mediation: What Makes a Good Mediator in Contract Disputes

The Art of Mediation | Contract Disputes | Eve MazzarellaThe Art of Mediation: What Makes a Good Mediator in Contract Disputes by Eve Mazzarella

Eve Mazzarella shares the art of mediation and what makes a good mediator in contract disputes.  Contract disputes can be complex, emotionally charged, and extremely costly. Inevitably, opposing parties feel they have been wronged either through the conduct of the other party or by unjust allegations of wrongdoing on their part. Mix money and emotion and representatives of an inherently combative profession (i.e. lawyers), and it’s no surprise that resolution is challenging. In such cases, mediation is often a more efficient and cost-effective alternative to litigation. A skilled mediator plays a pivotal role in helping parties reach a mutually acceptable agreement. In this blog, I’ll share my observations of what qualities and skills make a good mediator in a business contract dispute. I regularly participate in mediation in my professional role. Over the last year, these efforts have resulted in settlements of over $20 million.

Neutrality and Impartiality
A good mediator doesn’t take sides. A fundamental principle of mediation is the mediator’s neutrality and impartiality. A good mediator remains unbiased and doesn’t show favoritism toward any party involved in the dispute. This neutrality helps build trust and confidence among the parties. Often, clients have the misconception that mediation entails getting the mediator to agree with their view of the case. It’s important from the outset that the mediator communicates to the parties that there is no “winner” and “loser” at the end of the day. Rather, the purpose of mediation is for the parties to explore ways in which it may be possible to reach a resolution that they can live with.

Knowledge of the Law, Contracts, and Subject Matter
Mediators shouldn’t give legal advice, but a strong understanding of contract law, the legal implications of the dispute, and ideally the subject matter at issue is invaluable. A mediator who spent their career practicing the area of law applicable to the dispute is often very helpful, for example real estate law or employment litigation. A mediator who is well-versed in the relevant legal framework can help parties navigate the complexities of their contract, artfully and tactfully point out blind spots, and ask pointed questioned that can help the parties see the case from different perspectives. Some of the most effective mediations I’ve been a part of have included questions to counsel by the mediator that forced counsel to address issues they hadn’t focused on previously.

Exceptional Communication Skills
Effective communication is critical. A good mediator is an active listener who can not only hear what the parties are saying but also understand the underlying emotions and concerns. The best mediators are skilled in asking open-ended questions to facilitate meaningful discussions and guide the conversation toward resolution. For a mediator to be effective, they need to understand the motivations of the parties and pick up on subtle queues that hint at what it will take to resolve the dispute. They are empathic listeners who can connect with the parties. Great mediators also have a way of asking tough questions and communicating honestly about uncomfortable topics without coming across as aggressive, offensive, or judgmental.

Problem-Solving Expertise
Because most mediators are retired judges or experienced trial lawyers, they have spent a career addressing problems and disputes. Mediation is all about problem-solving, and skilled mediators possess strong analytical and critical thinking skills. They must be able to identify the root causes of the dispute, suggest creative solutions, and help the parties explore various options to find common ground.

Patience and Perseverance
A good mediator possesses patience and the perseverance to stay committed to the process until a resolution is reached. Mediation sessions generally last a good part of the day and I’ve seen them go well into the night. Mediators should always remain calm and composed even in the face of difficult situations. There are times when the parties just aren’t ready to settle and at the end of a long day of mediation they are still too far apart. In some cases, frustration or fatigue sets in and a party walks out. A good mediator follows up in the days or weeks post-mediation, sometimes offering a mediator’s proposal or presenting alternative forms of settlement. In the famous words of Churchill, they “never, never, never give up.”

Maintaining Confidentiality
Confidentiality is a fundamental principle of mediation. A good mediator respects the privacy of the parties involved and ensures that information disclosed during the mediation process remains confidential. This commitment to confidentiality helps create a safe space for open and honest dialogue.

Focus on Win-Win Solutions
Mediation is about making a deal. No party is likely to get exactly what they want, but if all parties are focused on finding a solution they can accept, there is often middle ground. A skilled mediator is dedicated to finding win-win solutions that benefit all parties involved. They help each side shift their mindset from adversarial to collaborative, encouraging them to consider the long-term benefits of a mutually agreeable resolution.

In the realm of business contract disputes, a good mediator serves as a neutral facilitator who guides parties toward a resolution that avoids costly and time-consuming litigation. Neutrality, legal knowledge, exceptional communication skills, empathy, problem-solving expertise, patience, confidentiality, and a focus on win-win solutions are the key qualities that make a mediator effective in achieving a successful outcome. By choosing the right mediator and understanding the process, individuals and businesses can navigate contract disputes with greater efficiency and increase the likelihood of successful dispute resolution.

Written by Eve Mazzarella