“This article originally appeared in the Mar 31, 2006, issue of The Lawyers Weekly published by LexisNexis Canada Inc.
How important is it that a mediator really understand the issue being mediated? Some mediators believe that it is not necessary for the mediator to have any expertise in the substantive area. In their view, the mediator is responsible for managing the process of the mediation while the parties are responsible for the substance of the dispute. When mediating a legal dispute, it is their view that the lawyers know the law and the parties know the facts better than any mediator should or could. Also, since mediators must be careful not to provide legal advice to the parties, some might argue having a mediator with legal expertise is of little value to the parties.
While substantive expertise is not always necessary, there are some circumstances where it might be helpful and perhaps even desirable. A simple landlord/tenant dispute over noise probably does not require the mediator to have specific substantive expertise to grasp the issues. However, if a dispute involves, for example, an allegation of infringement of a patent, the mediator may need technical expertise simply to understand the nature of the dispute let alone the legal issues that have been raised.
Lawyers and parties do not want to slow down their discussions to explain the fundamentals of the underlying technology to the mediator: they do not want to educate the mediator. They want the mediator’s assistance to communicate about the issues in dispute in a productive way. Therefore, in order to be of assistance to the parties, the mediator may need some technical expertise.
In some cases, it may take years of experience to develop the necessary expertise. Although Don Wright of Lang Michener had a degree in physics and geology, when he first began to handle intellectual property cases as a solicitor over thirty years ago, he faced a “very steep and lengthy learning curve to get up to speed which anyone commencing from a standing start would encounter” . Now, as a mediator, that expertise helps Don to understand the complex technical language and concepts that are so often a part of IP mediations.
The role of the mediator is more than simply managing the exchange of information between the parties; a mediator needs to assist the parties to make informed choices about various settlement options. At some point during a mediation, each party is going to have to decide whether or not to accept an offer made by the other side. For those mediations that take place in the shadow of the law, the party receiving an offer has to weigh the benefits and drawbacks of accepting the offer against the benefits and drawbacks of proceeding with the court process.
Although mediators with legal training cannot give legal advice to the parties, they can rely upon their familiarity with the law to ask questions designed to help the parties to reflect carefully on the benefits and drawbacks of proceeding to court. “In wrongful dismissal cases, I often have discussions with lawyers and their clients about the likelihood of their being able to get punitive or ‘Wallace’ damages” comments Allan Stitt of ADR Chambers. “If I think people are being unrealistic about the likely outcome at trial, I know it’s my job to ask some tough questions.”
Having experience and expertise in the substantive area in dispute may also allow the mediator to quickly bring focus to the issues in dispute. In cases where counsel have raised multiple legal arguments, Don Wright believes that “a mediator who is familiar with legal principles and who can swiftly grasp the facts may be able to quickly reduce the number of issues to those that really matter”.
Some studies have suggested that it can be very difficult for lawyers to objectively assess evidence once they have been retained to represent one side of a dispute. (This is true notwithstanding the fact that the vast majority of people believe that, contrary to the norm, they can be objective in their own cases.) The mediator can sometimes assist the parties by providing neutral feedback as an objective observer. The parties will only find the mediator’s feedback valuable, however, if they respect the mediator’s understanding of the law and the issues in dispute.
Another reason why it can be good for a mediator to have substantive expertise is that it may enhance the credibility of the mediator with the parties. The more the parties have trust and confidence in the mediator, the more the mediator can do to help the parties reach a settlement. In many circumstances, the mediator will gain credibility if the parties believe that the mediator is knowledgeable about the issues on which there is disagreement.
If substantive knowledge is of assistance, what degree of knowledge is necessary? Given that the mediator will never have a better handle on the facts than the parties and will only rarely know the law as well as the lawyers, it is lucky that it is not necessary for the mediator to be the most knowledgeable person in the room in order to be of assistance. It is likely enough if the mediator has the necessary experience and expertise to: understand the terminology used by the parties; follow the arguments advanced by counsel; ask insightful questions; offer alternative approaches to achieve settlement; and gain and maintain the trust and respect of the parties.
Written by Elinor Whitmore.