More Barriers to Mediation: Why You Might Choose a “Non-Attorney” to be Your Mediator
By Glen Bickford, Minnesota Qualified Neutral and Trained Mediator
In MN, the vast majority of mediators are attorneys. But are attorneys always the best mediators? I would argue no, though for certain cases they are a must. And before signing a final agreement, one is wise to run a settlement past a trusted attorney for her or his opinion.
Attorneys are taught logic in law school, and judges rule mainly on the facts of a case. But mediation, deciding what is best between two or more people, is often about understanding emotions. The emotions between two people in a dispute are often complex. Mediators should understand how best to use that emotion to help, not hinder, settlement. The best, most persuasive attorneys are those who not only make an airtight logical argument for holding a particular position, but can sell why it is important to hold that position. This may involve using not only logic, but emotion, using language the person you are trying to persuade can appreciate.
Even if the people involved are not yelling at each other, badmouthing or showing anger, there are usually good emotional reasons behind the positions we hold in an argument. We may not even realize how emotional we are, but if we continue to disagree, emotions show up sooner or later. For example, one person feels put down, disrespected, or feels he/she is not being listened to.
With most people, the form of the argument you make is as important as the logic of the argument itself. Or put it another way, most people only trust the logic of an argument when they have learned to trust the person making it. Attorneys are great at making arguments, but often not nearly so good at inspiring the trust of both parties at the same time. This trust factor in mediation is not strictly logical, as arguments should stand or fall on their own merits. But it is most often true.
When interacting with people who are being emotional (and all people are somewhat emotional), it may be wise to consider a person who understands emotions. An attorney who is not skilled in emotions may not be the best choice of mediator, especially if the argument is both emotional and logical. A mediator should have equal parts of head and heart skills, able to use either as the situation requires.