By Steven G. MehtaSteve Mehta

 

I have promised several people to try to come up with a list of mistakes that mediators make.  Rather than create one long list of mistakes I thought it might be better to have a few mistakes at a time so that each mistake can be digested and considered fully.  My view is that I learn more from my mistakes than from my successes. 

Before we address the mistakes made by mediators, it is important to understand the context of how mistakes should be viewed.  In that light, the following are comments from many great people regarding mistakes.

 

  • “All men make mistakes, but only wise men learn from their mistakes.”  — Winston Churchill
  • “Experience is the name everyone gives to their mistakes.” — Oscar Wilde
  • “If you’re not making mistakes, then you’re not doing anything. I’m positive that a doer makes mistakes.” — John Wooden
  • “After making a mistake or suffering a misfortune, the man of genius always gets back on his feet.”  — Napoléon Bonaparte
  • “The greatest mistake you can make in life is to be continually fearing you will make one.” —  Elbert Hubbard
  • “It is necessary for you to learn from others’ mistakes. You will not live long enough to make them all yourself.” — H. G. Rickover
  • “A life spent making mistakes is not only more honorable, but more useful than a life spent doing nothing.” — George Bernard Shaw
  • “Creativity is allowing yourself to make mistakes. Art is knowing which ones to keep.” Scott Adams

 

It is obvious to see that mistakes are not only necessary to success, but they are at the very foundation of our existence.  From mistakes come the greatest rewards.  The mistakes are in no particular order and are by no means are exlusive list.  Eventually, I will compile a complete list of mistakes.   But for now, let’s start with a few.

 

Fear of Failure

 

            The fear of failure and the fear of making mistakes is probably one of the biggest mistakes made by mediators.  Many mediators feel that they have to be perfect; that they aren’t allowed to make mistakes in mediation; and that if they make a mistake during mediation, that it should be covered up.  Usually this feeling is created because of the fear of failure.  Namely, that the mediator feels that if a mistake is made, the mediation may fall apart and the case won’t settle.  However, we should not judge mistakes by whether or not the mediation falls apart. 

             Often, you may not be able to control the fact that the mediation falls apart.  However, if you are governed by fear of having the mediation fall apart, you will not be open to the possible new ideas that may be available to try to resolve the case.

             Although there can be a certain pattern to mediations, no mediation is exactly alike.  Each time you enter into a mediation, the mediation requires different tools and ideas.  Being afraid to try new ideas because you are afraid that you may fail with those ideas is the deathblow to any successful mediation.  I’ve had many mediations where a possible creative solution failed.  However, those failed possible solutions often opened the door to the actual solution to the case.

             Early in my career as a mediator, I was afraid of making mistakes.  Some of the reasons why I was afraid was because I was concerned that if I made a mistake the parties would not come back to me. In addition, I was afraid because I thought that the attorneys would recognize my idea as a mistake and then would judge me negatively. What I learned from those mistakes was that most mistakes that you make are only mistakes in your mind.  Often, the parties and their attorneys do not believe that those failed ideas are mistakes.  It is important to understand that the parties and attorneys view you as the expert in mediation. They view your mistake as merely a tool in your arsenal of techniques that failed. They won’t think it’s a mistake unless you let them know.

             Ultimately, to be an effective mediator you must be willing to try new things.  We all talk about solutions outside of the box.  However, that phrase means that we need to be willing to try things that don’t fit the mold.  On many occasions those ideas will fail.  But rest assured, that idea failing does not mean that the mediation will fail. It only gets you closer to resolution.

Giving Up

This next mistake was provided by @abegler from my twitter network.  She states that the ABA report indicates that advocates want the mediator to be persistent and not ‘give up’ during challenging junctures.  This is critical to success of the mediation.  Persistence, according a recent study done on mediation and listed in my prior post on the key to success in mediation is a vital part of a mediator’s success.  In addition, as noted, the advocates want you to persist, even if they say otherwise.

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