Emotional intelligence is one of the most underrated and overlooked characteristics of a good mediator.  Negotiations are built on trust and emotional intelligence is the foundation of trust.  Yet so many mediators neglect emotional intelligence.  In this 5-part series, we’ll be exploring ways EI can enhance mediation. 

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Having mediated with some of the top mediators in the country, I’m surprised at how many of them will come into the room/Zoom and jump into the facts of the case or substantive factual or legal questions without barely introducing themselves to the parties.  Even worse, some of them may introduce themselves, but make no effort to connect to the clients/parties by asking simple questions to find out more about them.  

For many clients, this is their first mediation.  Even for those with some experience with mediation, they likely don’t know the mediator and aren’t fluent in mediation like the lawyers are.  Nevertheless, it's amazing how many experienced mediators just skip over this step altogether and jump right into the case, like a doctor walking into the room and going straight for the prostate check.  Yikes!  

We all know that establishing a relationship is the first step in building trust.  Too many mediators assume that their experience as a former judge, as an experienced mediator, and/or as a long-time attorney buys trust.  But they confuse respect with trust.  Trust isn’t bought; it is earned.  And deals are made based on trust, not respect.  Taking the time to get to know the people that you will have to make big asks of later in the day is one of the most important steps to reaching a resolution.     

The easiest way to build rapport is to have a conversation with the participants and to listen.  Legal arguments don’t qualify as a conversation.  It is important to probe behind the legal arguments to hear both the plaintiff and the defendant’s story.  In these stories are important clues to the nature of the dispute and the personality dynamics that often play a key role in getting a deal done.      

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Continue to Part 2 of the series...