Have you ever wondered why certain commercial ADR providers advertise that their neutrals have 10 years or 15 years of experience in some related field? Does having 10 or 15 years of baggage help parties with resolving unique issues?
My biggest difficulty when I serve as a mediator is to stop thinking like a lawyer. Lawyers are trained to analyze issues and to apply a rule of law to arrive at a certain outcome. Parties to disputes are not lawyers. They do not think like lawyers. They do not care (and they may be hostile) about some notion about a rule of law that might affect their dispute.
Thinking like a lawyer can be an impediment to the successful resolution of a dispute. Mediation facilitates creative problem solving. Creative problem solving allows parties to craft their own unique solution to their unique problem. They are allowed to invest in the process and to invest in the solution.
10 or 15 years of industry experience as a basis for being an effective problem solver is much like my problem of thinking like a lawyer when I mediate. There are industry norms of conduct which participants are indoctrinated in and which are more difficult to back away from the longer a person has been involved in the industry. These norms of conduct then become like the rules of law which then leads to inflexibility. Creative problem solving becomes difficult.
It is important for participants in a mediation to understand that they are empowered by the process. The ADR service provider does not have to live with the solution. The parties do. Empowerment is a better Gage of the quality of the service than the mediators years of experience in a particular field.
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