by the Arbitration Association

What it takes to be a good mediator?

July 30, 2019

Interview with Ms. Irena Vanenkova, the first Russian internationally accredited mediator.

Irena, we heard that Who's Who Legal is shortly to publish the 2019 edition of WWL: Mediation and you have been again selected for a listing in this publication as a leader in the field. We know that you were an English tutor and interpreter after graduating from The Linguistic University (Moscow State Institute of Foreign Languages then). How did you became part of the legal world in dispute resolution and a mediator? Where did you start?

It is difficult to say where it all started. I have seen disputes in the places where I worked, studied and lived and often I saw how poorly many of them were handled. Needless to say that I was trying to help find a better way. When in 1998 I went on a mediation training course with CEDR I quickly realized that I had been acting as a mediator for years without knowing that. In 2007, I was asked to help establish the International Mediation Institute and became its Executive Director. Now I continue promoting mediation around the world to help mediation become a real profession on the Board of the Singapore International Mediation Institute. I have been involved in many developments in international mediation, including the work of the UNCITRAL that led to the finalization of the Singapore Mediation Convention. I am now a member of the Leadership Group of the International Negotiation Initiative.

Please tell us in more detail about your experience with mediation. In what kinds of cases have you mainly been involved?

Mainly commercial and family cases from divorces to multicultural multiparty conflicts, but also some community issues lasting from several days to several years. Unfortunately, it is not possible to unveil many cases due to confidentiality of mediation. In fact, when you work in communication and management in or with organizations where there are many participants with different views, you quickly end up mediating outcomes among them.

Has your mediation experience helped you in other areas?

That’s a good question! Mediation experience with mediation skills and knowledge are so helpful in different areas of life from family to high level communication and relations. I would say in all areas of my life. I use mediation skills daily, even when I am not mediating. I listen to understand rather than to argue; I question to gather information, not to trip people up; I communicate. The reverse question might be more insightful: Is your experience in other spheres of life helping you in mediation? And the answer will be yes, yes and yes again. My experience in teaching, interpreting, management, PR and communication helps so much in mediation and negotiation.

That leads us to the next question: What are the most important skills for a mediator to have?

I would say Mediator skills should always go together with knowledge and experience. Here are what I consider to be the top 10 skills of a mediator:

1. Negotiation skills. A toolbox of skills is needed and the ability to know which tool to use, when. Mediation is assisted negotiation. Although the mediator is assisting, not negotiating, she or he must be an expert at the art and science of negotiating.

2. Preparing all the participants for mediation. When the parties have prepared themselves well, there is a much higher chance of a settlement. So I try to make sure each party can separate what they want from what they need, that they know what their best and worst options are if they do not settle, and I try to manage their expectations and ensure that everyone comes to mediation in the right state of mind clearly understanding the process, their roles and how they can get the most from it. 

3. Understanding the meaning of leverage, and correctly identifying each party’s leverage. Leverage is sometimes defined as “power” but this is not fully accurate. Leverage is the sum of the factors that influences one party to behave in a certain way with the other. A lot of leverage is in the mind. Leverage is also smoke and mirrors. The mediator needs to accurately understand how each party’s view of their own and the other party’s leverage is affecting how they behave.

4. Questioning. Situation questions. Problem questions… Implication questions. Need/value questions! Questions help mediators draw out the underlying issues and help truly understand what is going on. Asking the right kind of questions in the right order is important to gain a complete understanding of the problem, and a view of how to resolve it.

5. Active listening skills. Genuinely trying to understand – not just gathering information to rebut. When someone appreciates that the listener just wants to understand them better, then they open up more easily. Listening is partly about non-verbal communication, the signals the listener sends while listening, but is also related to questioning.

6. Communication skills. The greatest problem in negotiation is the illusion that it has taken place. Failure to communicate is often a cause of disputes, or at least a major factor. Mediators can help the parties to communicate better, first by communicating well with and through the mediator, and then directly with one another.

7. Process skills. Knowing the different ways process itself can be part of the problem to overcome it. The mediator is constantly supporting participants to create the most appropriate and effective processes for resolving their dispute. In a mediation, the only thing the mediator manages is the process. When you select the right process, the parties can negotiate more easily. Sometime, for example, the mediator will split the parties up and communicate with each of them privately before bringing them together, but at other times the mediator will keep them together. It is the skill of the mediator to define the right process at the right moment in the right way.

8. Confidentiality skills. Being able to keep the parties’ confidences and behave ethically. Trust takes time to build but can be lost instantly when a confidence is broken. Mediators can build trust by constantly demonstrating how they maintain confidences, including by showing how they respect the other party's confidences.

9. Being tough-minded. Not nasty or difficult, but patient, caring, empathetic, resilient and energetic. It is more difficult than you might think being a mediator. It can be exhausting and you need to be alert and professional at every moment.

10. The ability to inspire all participants in mediation to create solutions and make informed decisions. Mediators need to stay positive, and demonstrate positive thinking to the parties so that the discussion does not descend into a spiral of negative sentiment.

And all the skills we worked out in the IMI Independent Standards Commission Taskforce for Intercultural Competency Criteria.

If you could name a personal quality that has played the most important role in a mediation that you’ve seen through to a successful conclusion, what would it be?

Empathy and maturity – the ability to be seen to understand and share the feelings of someone else. Thoughtfulness. Creativity. Wise counsel. Honesty. These and many others are involved in mediation.

How do you see the role of the lawyers representing the disputing sides in mediation? What can they do to help the mediation and the mediator rather than hindering them?

It depends on the quality of the lawyer. Those who genuinely put the interests of their client first will use their skills to help the client, the mediator and the other party to explore options for mutual gain which can lead to a settlement. The skills needed are negotiation skills, not the kind of skills that are needed in Court or Tribunal. The IMI Independent Standards Commission worked out Criteria for skills needed by a mediation advocate.

What kind of cases are in fact mediatable? Do you have any kind of a "checklist" that you use while accessing whether mediation is an appropriate method for this particular case?

Most cases can be mediated. In the United States, which has a huge volume of lawsuits every year, only about 3% of cases come to the judgement of a Court or an award of a tribunal. About 97% of cases settle or for another reason not go to a trial in court! This might well imply that 97% of cases can be mediated!

But that is not the whole answer. A lot depends on finding the right process and the right mediator for a mediation. I can name just a couple of helpful tools, which can serve as "checklists":

There has been extensive discussion about how mediation can bring benefits to the disputing parties and to society in general. What, in your view, is the chief value of mediation?

Mediation is not about rights and wrongs or black and white, but about helping parties achieve an outcome that resolves the past and helps to build a platform for the future. Where this can be done through negotiation, assisted by a mediator, the result is usually acceptable to everyone involved. Not all mediations fully resolve all issues (though statistics around the world show that at least 80% do achieve a complete settlement). Sometimes, not all issues can be resolved through mediation and the outstanding problems can then be handled by arbitration. Mediation does not replace arbitration. There is plenty of space for both mechanisms, depending on the circumstances and the needs of the parties.

In your view, why is it that mediation is less popular in Russia than, for instance, in the USA or Western Europe?

I get asked this a lot and I think there are several answers:

First, there are fewer legal claims in Russia than, say, in the United States. Russians are born negotiators. They negotiate their way out of their problems whenever possible. In the United States, the culture is different, and they more easily go to court or tribunal.

Second, how can we tell that mediation is less popular in Russia than in most other countries? Lack of statistics? General impression? Little teaching and training? Not much written about it? Maybe all these things, but there may be more going on than we all realise. I believe most disputes get resolved through negotiation and never come anywhere near a court, and it may be that parties quite often use outside help to enable them to get to yes. We just do not know because these situations are private and are not publicly known or recorded.

And Third, we have not built a national mediation infrastructure in Russia. The concept of mediation was quite alien for the legal and educational systems leading to the situation where general public, judiciary, business community and lawyers are practically not familiar with mediation or had a misperception about the nature of mediation. A question of enforceability also hampered the trust in the mediation process.

In August the United Nations Convention on International Settlement Agreements Resulting from Mediation will be signed in Singapore. One of the concerns associated with mediation is the lack of direct and effective enforceability of mediated settlement agreements in case one of the parties refuses to perform or violates the agreement. That is often mentioned when mediation is compared to other methods of dispute resolution, for example, litigation or arbitration. Do you think the new convention will help?

Indeed, the Singapore Mediation Convention, as it will be called for short, will be mediation’s version of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, The success of international arbitration, among others, is owed to the New York Convention, which made possible global enforcement of arbitral awards. Just as that Convention greatly increased the use of arbitration in the world, the Singapore Convention is expected to have a similar effect of mediated settlement agreements by making them more easily recognized and enforceable in countries that adopt the Convention. 

We know that you were personally involved in the work of the UNCITRAL WGII on Mediation Convention. Could you tell us a bit more about the Convention and discussions?

The discussions took over 4 years from May 2014, when the proposal from the US Government was submitted, to December 2018, when it was adopted by the UN General Assembly. My colleagues in IMI and I assisted the UNCITRAL Secretariat in the deliberations. We initiated and implemented information sessions for the delegates on the essence and values of mediation, provided results of the surveys during the sessions and arranged multi-stakeholders discussion groups in-between the sessions.

Look at how The Singapore Convention lists the main benefits of mediation:

    “contribute[s] to the development of harmonious international economic relations,” 

    “reduc[es] the instances where a dispute leads to the termination of a commercial relationship,” 

    “facilitate[es] the administration of international transactions,” and 

    “produc[es] savings in the administration of justice by States.” 

We should not forget that along with the Singapore Convention The UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (amending the Model Law on International Commercial Conciliation, 2002) was approved in 2018. Several countries already started adopting their national mediation laws based on the Model Law. 

I think it is worth mentioning that until the Singapore Mediation Convention gathers a similar number of signatory countries to the New York Convention, institutions in Singapore and a couple of other countries have been developing a hybrid of arbitration and mediation called Arb-Med-Arb. This process simultaneously increases the efficiency of arbitration and the effectiveness of mediation.

And the last question. What would you recommend to the readers who would like to use mediation?

It would be wonderful if more and more professionals become interested in how to succeed in negotiation and dispute resolution. In addition to books on negotiation and mediation you might be inspired by articles in Kluwer Mediation Blog and Negotiation and Mediation competitions could provide a unique opportunity to practice the key skills first hand in a safe environment. All that will help make informed decisions on the many aspects of negotiation and mediation to learn deeper and choose the educational and training programs. The best results are achieved when new mediators gain opportunities to shadow experienced professional mediators or mediation advocates in real life mediations. That has proven to be the most effective path to get into mediation and increase skills. 

Olga Tsvetkova, RAA40 & Young IMA Co-Chair

Sergey Morozov, Young IMA Co-Chair