Mediators – Expert Facilitators

Is having subject matter expertise really a pre-requisite for effective mediation as was suggested by Lord Jackson in his review of civil costs?  Lord Jackson claims that Personal Injury Mediation should be carried out by mediators with specialist experience of personal injury litigation. Lord Jackson is not alone on this one as many other subject-matter expert mediators support his view. I see parallels between this and the perception that HR professional are ideally suited to act as mediators within their organisations. I view the idea of subject matter expertise different to Lord Jackson.

The Art of Mediating without Mediating

I think having subject matter expertise or being seen as expert in the substantive issues of the mediation potentially compromise the role of the mediator, or at the very least, make acting the role of mediator fraught with difficulty. I practice and advocate the facilitative model of mediation (as opposed to the evaluate model), so any assumption I make or view I express is done so from this perspective.

So it follows therefore that the only expertise that is important to have when mediating is that of being to effectively facilitate a dialogue between the parties that helps them share and explore the relevant information that helps them determine through free and informed choice the outcomes that are right for them.

There are three main challenges when mediating with subject matter expertise, they are;

  1. Neutrality compromised- It makes acting in an omnipartial (the new neutral) capacity even more difficult because the parties will inevitably expect you to play a different role, simply by virtue of your espoused expertise.  They may look to the mediator for a steer, suggestion or opinion on the strength of their case and even if one isn’t forthcoming the likelihood they make an inaccurate inference is high. Either way a subject matter expert could unwittingly influence the decisions people make and deny them the virtue of self determination.

  2. Higher risk of unconscious bias- Mediators with subject matter expertise are likely to be prone to unconscious bias or prejudice, as any mediator will be, but the implications are greater for the subject matter expert.

  3. Curiosity limited by bandwidth- Testing assumptions is an important skill a mediator deploys to help parties explore the reality of their situation and aspirations. The advantage of not having subject matter expertise allows a mediator to ask the seemingly obvious questions, rooted in a place of genuine curiosity. The subject matter expert on the other hand is looking at the conflict through particular lenses which will inevitably influence the kind of questions they ask. My experience of subject matter expert mediators is they have a tendency to ask questions that are rhetorical in nature, as they seek to prove or disprove a view they already hold – this isn’t genuine curiosity and therefore limits the effectiveness of the mediator.

My views on this subject have been influenced since learning the Skilled Facilitator Approach – which places an emphasis on self awareness, transparency and accountability. So I don’t think it’s quite as clear cut as saying that subject matter mediators are less effective than other mediators, I just think they need a greater degree of self awareness, transparency and accountability. They need to be highly skilled facilitators.

Click here to read more about the Skilled Facilitator Approach.

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