Mediation Competency Begins with Me

The key to developing true mediation competency:

In addition to skills training in mediation, what do mediators need to improve their mediation competency?  While mediation skills training remain essential to the practice of mediation, the key to developing mediation competency begins with self-reflection and self-management.  Before we can effectively assist those in conflict, we must first look inward to better understand our own emotional competency and the impact we have on others around the mediation table.  Developing mediation competency is truly a life-long journey of self-development that begins with “me”.   

So began my conversation this past summer in Vienna with my friend and colleague Dr Mario Patera of Konflikkultur in Vienna, as we reconnected to reflect on mediation training during the pandemic.

We began with the observation that all mediators should understand that as facilitators of the negotiation process, we introduce ourselves into the conflict.  With that introduction comes our own unique personality, emotions, and life experiences, including biases. It’s this constellation of individual characteristics and skills that makes each of us unique and why mediation at its core is truly an exercise in personal service.

Yet Dr Patera and I lamented that most mediators looking to improve their mediation competency, and therefore many training courses, are quick to focus on specific skill development, ignoring completely the critical need for self-reflection and self-management as a precursor to effectively assisting those in conflict. Simply stated, self-management remains a professional blind spot for many mediators who eschew the need for and the effort required to effectively manage themselves as an integral part of the mediation process. Dr Patera concluded that it’s incumbent on those seeking to develop mediation competencies to begin by looking inward and committing to a journey of self- development. I summarized our conversation with the somewhat counter intuitive observation that mediation begins with “me”.

What do I mean by self-management and what do mediators need to understand about themselves before effectively engaging with others? Before answering the question of what self-management is, it’s important to distinguish what it is not. Often self-management training in the business world focuses on time management and how to increase productivity. In contrast, the discussion of self-management by mediators is less about efficiency and more about effectiveness. It’s less about acquiring specific skills and more about developing social competencies. In fact, describing the process as self-management training does an injustice to the level of commitment and lifelong journey required for self-development.

What then is self-management, and why is it an essential first step in developing mediation competency? Ancient Greeks emphasized three aspects of the human experience: the mind, the body, and the spirit. This time-honored perspective provides a valuable template for examining self-management and its goal of developing mediation competency. Specifically, we should envision a triangle with each side reflecting a different focus of self-management: self-management of the mind, self-management of the body and self-management of the spirit (emotions).  A deeper understanding and self-mastery of these focuses of self-management should become the taproot of all future learning.

Mediation Begins with Me

  • Self-Management of the Mind

Over the course of my teaching career, I’ve coined the term Mediator’s Mind™ to describe the mental model we create for ourselves that defines our approach to mediation and shapes our every intervention in the conflict environment. Self-management of the mind begins with self-reflection and developing a strong vision of how we see our role in mediation. This mental model will become a mediator’s North Star that can be returned to time and again during difficult moments in mediation.

I’ve also described our journey through life as an exercise in focused attention. Yet we know from brain research that at any given moment, we only commit a fraction of our available attention to the task at hand. Similarly, we know from our own everyday experience that the constant white noise of our internal conversation, at best, distracts us from devoting full attention to communicating effectively with others. Self-management of the mind thus begins with sharpening our ability to focus and using our internal voice productively while engaging others in conversation.

More recently, we have developed a deeper appreciation for the role that cognitive and emotional biases play in our ability to perceive the environment clearly and communicate effectively with others. Effective self-management of the mind begins with understanding our own biases and how to account for them as we intervene with others in mediation.

  • Self-Management of the Body

As mediators, we know the importance of nonverbal communication and pay as much attention to physical cues as we do the spoken word. Yet, how many mediators take the time to hold up the mirror of self-reflection and examine their own body’s cues and role in mediation? How many are aware of their own internal signals? There is a term in psychology, somatic markers, which refers to our physical responses to external stimuli, often stressors in our environment. An example is when you open your email server and just seeing a sender’s name causes your stomach to turn or your jaw to clench. In mediation, how many times have you paused before walking into a private conversation with one party, only to observe a tightness in your chest or some other physical manifestation of stress? Learning to pay attention to these important signals our bodies send us is the first step to self-management of the body.

Equally important is mastering our own body language. The recent trend toward online dispute resolution and the forced marriage between mediation and technology has offered an unparalleled opportunity for self-management of the body. Spending eight hours a day on a computer screen provides the opportunity to observe yourself in the moment. We have never had a better chance to witness and become aware of our body language, including subtle facial expressions, as we communicate with others.

Finally, the physical demands of mediation remain a blind spot for many. Preparing for and navigating the physical needs of full-time conflict resolution mirrors the training required of a high-level athlete. Rest, nutrition, and stamina are all part of the self-management conversation.

  • Self-Management of the Spirit (Emotions)

Self-management of the spirit entails developing emotional intelligence, defined as the ability to perceive, understand, and manage emotions. The journey toward expanding one’s emotional intelligence has been, metaphorically speaking, equated to exercising and strengthening one’s emotional muscle. And the first step toward developing one’s emotional muscle is self-assessment, evaluating what shape you are in and acknowledging your baseline for expanding your emotional capacity.

To assist this capacity building, we begin our training by encouraging students to engage in reflective exercises to understand and appreciate how one’s immediate family members influenced their emotional development.  We also train them to use positive and negative scales to rate their current feelings. These exercises help mediators learn to attend to their own emotional state while better understanding the opportunity for developing a higher level of emotional competency.

Self-management of one’s emotional well-being also includes self-care and self-compassion. It’s paradoxical that many of us are drawn to this profession by a profound need to assist others, and doing so effectively requires extraordinary amounts of empathy and compassion. Yet when the mirror is reflected inward, we find an industry-wide epidemic of compassion fatigue and burnout caused by an inability to access the same degree of self-compassion as one has available for others.  Simply put, one cannot continuously work close to the flame of high emotions without giving equal attention to one’s own well-being.


 The journey toward mediation competency, one which effortlessly demonstrates valuable skills and techniques in the presence of strong emotions, begins with a commitment to honest self-reflection and thoughtful self-management focused on mind, body, and spirit (emotions). Yet the noble goals of achieving the highest levels of emotional intelligence and social competencies will not come from books, blogs, or webinars. Instead, they will evolve only from a lifelong commitment to self-reflection and personal development. These are not easy lessons yet they must be the first steps taken along the journey of preparing ourselves to help others. For those mediators willing to make this commitment, it will lead to impressive mediation skills and a higher quality of life. It’s why we need to remind ourselves that the road to mediation competency begins with “me”. 



Average Settlement Offers in Mediation

Average Settlement Offers in Mediation

I was asked by a journalist recently about the average settlement offers in mediation.  And while his search for understanding is laudable, the question itself is misguided.  

Mediation, a form of alternative dispute resolution, is best defined as a facilitated negotiation.  At its core, it is a voluntary process that relies on the skilled intervention of a neutral third party or mediator.  The mediator’s job is to help disputants understand the other’s perspective, position, and interests in a dispute and effectively communicate settlement offers between them to reach a final agreement.  Unlike a judge or an arbitrator, the mediator is not a decision-maker but a neutral third party who assists the parties in arriving at their own decision for settling a dispute.

Growth in Mediation for Settling Commercial Disputes

Civil litigation in the United States, particularly those cases that end in trial, has been steadily declining over the past few decades.  It’s now quoted that fewer than one percent of commercial cases filed in federal court will end in a trial.  The same trend is apparent in commercial disputes filed in most state courts as well.  This means that the vast majority of commercial disputes end in settlement. 

While civil jury trials have been declining, the use of mediation and other forms of alternative dispute resolution for resolving commercial disputes has steadily increased.  Mediation offers several advantages over litigation for settling disputes.  The attorney fees, time, and friction associated with mediation are generally far less than with  litigation.  Mediation, being a voluntary process, offers parties complete control over the process and the outcome of the process.  Where mediation has been used, it has enjoyed high success rates in achieving settlements with acceptable results for both sides of a dispute. 

What then is the role of mediation and the facilitated exchange of settlement offers in achieving this success?  To illustrate, we’ll look at a mediation scenario and the facilitated negotiations for settling a typical commercial dispute.

How Do You Negotiate a Settlement in Mediation?

To better understand how mediation helps optimize outcomes while saving the parties time and expense, we must first do a deeper dive into a quintessential commercial dispute, let’s say, a personal injury lawsuit.  Envision a typical car accident involving a middle-aged woman stopped at a crosswalk as she waited for pedestrian traffic to clear.  Without warning, her vehicle is struck from the rear by a local public works vehicle whose driver was distracted by looking at his cell phone.  As a result of the collision, the woman suffers a physical injury to her neck and spine and incurs significant medical expenses for ongoing treatment.  She brings a civil lawsuit naming the public works department and its driver as defendants, both of whom are ultimately defended by the town’s insurance company.

Agreement to Mediate

The defendant’s insurance company suggests and both sides agree to participate in a voluntary mediation to determine whether the matter can be settled outside of court before more formal and costly litigation ensues.  Prior to the mediation, the mediator reaches out to the plaintiff’s attorney and solicits a settlement offer, sometimes referred to as a demand, to begin the negotiation process. 

The Mediation Joint Session 

Once at the mediation, the mediator assembles both sides in her conference room and invites opening statements.  The goal is to provide each side the opportunity to share their unique perspective on the facts and law giving rise to the litigation.  In addition to the facts and the law, the joint session is often where the parties’ priorities come to light.  In the above example, the plaintiff brings up the fact that her children went to the local school and crossed the street at the very same crosswalk.  In an appropriate but emotional fashion, she expressed concern for the safety of all local children walking to school.    

Private Meetings and Settlement Negotiations

Following the exchange of opening statements, the parties are separated into different rooms and invited to speak privately with the mediator.  These confidential meetings allow the parties to express their views and interests in private that they might not otherwise be willing to talk about in a joint session and to discuss various options with the intent to find a resolution. 

At some point during the private meeting with the mediator, the defense attorney, and the defendant’s insurance company representative, the mediator will ask for an initial settlement offer from the defendants in response to the plaintiff’s demand.  Once communicated to the plaintiff, the facilitated negotiation is underway. 

Depending on the perceived appropriateness of the plaintiff’s demand, the initial offer may itself be viewed as reasonable or not.  It’s important to emphasize that no two negotiations are the same.  The process of exchanging settlement offers and demands may involve two steps or twenty two steps depending on the complexity of issues and the amount of money involved.  The negotiation dance varies from case to case but shares common characteristics.  Both sides tend to initiate the process by making exaggerated settlement offers.  This is done to test the water in hopes of optimizing any potential outcome.  One of the many benefits of having a trained negotiation professional as a mediator is that she can assist the parties in navigating this otherwise polarizing moment in negotiation. 

In the example above, the mediator may learn in a private meeting with the plaintiff that her primary motivation for the litigation was to ensure that local school children would not be at risk of injury or worse while crossing that intersection.  After reporting this understanding to the defendant and their representatives, the town agreed to install a stop light at that crosswalk.   

The negotiation itself may conclude during the mediation session or may require the continued exchange of settlement offers after the parties have left the building.  

Settlement Agreement

We know statistically that any distributive bargaining exercise is most likely to conclude mid-way between the first reasonable settlement offer and reasonable demand. 

In many instances, a settlement agreement may include creative solutions as described above, not typically available under traditional legal remedies.  In addition to installing a stop light, the settlement above might include an agreement from the public works department or its driver to apologize to the injured woman, along with appropriate economic compensation. 

Once the parties have reached a verbal agreement on all settlement terms, the mediator will assist the parties in fashioning a written settlement agreement to be signed by all parties. 

Having reached an agreement out of court and well before a more traditional settlement would be possible, those involved in mediation often describe their experience as “winning” in mediation.

Plaintiff vs. Defendants in Mediation

Average Settlement Offers In Mediation

While there are few reliable statistics available regarding average settlement offers during mediation, we do know that offers reflect a multitude of variables from liability and damage considerations to the motivation of the parties to resolve the conflict. And every case represents different levels of motivation depending upon the unique nature of the claims and the priorities of the parties involved.  Because these variables differ widely from case to case, there is no reliable way to determine an average value for settlement offers.  There are, however, some known commonalities in settlement offers that can help inform and prepare parties during a mediated settlement.  We know that: 

  • Both parties will approach the settlement from different perspectives, with the plaintiff hoping to get the most money out of a settlement and a defendant looking to pay the least amount of money possible.   
  • The first offer commonly starts high (if it comes from the plaintiff) or low (if it comes from the defendant).  This shows the other side that they are unwilling to give too much too soon.
  • Both sides will probably start far apart in their offers and then make their way toward each other as the negotiations move on.  
  • Negotiations during a mediation can take time.  At the beginning of the day, the parties may not move closer to an agreement as they feel they need to maintain strong positions.  But as the day goes on and the direction of the settlement begins to crystalize, they may move faster and closer toward settlement or decide that it will not work out.
  • The outcome of the negotiation will be somewhere in the middle and that most of the time, the plaintiff will leave with less than they wanted, and the defendant will pay more than they wanted.

What Percent of Cases Settle in Mediation?

We know that most commercial disputes settle during or shortly after the formal mediation process.  It’s important to emphasize that many ethical rules governing mediator conduct prohibit the advertisement of specific so-called “success rates” as they may be prone to hyperbole and exaggeration.  Yet, we know anecdotally from industry-wide reports that the majority of mediations end in successful resolution, defined as voluntary agreement of the parties.  This industry success rate is well in excess of 75%.  Clearly, the skillful handling of settlement offered by trained neutrals and the ability to overcome moments of impasse play a crucial role in this industry’s success. 

How Do You Win at Mediation?

Unlike a jury verdict in a civil trial, there is no clear winner and loser in a mediation settlement.  The goal of mediation is to reach a win-win settlement, where both sides see the outcome as fair and desirable and feel that they have reached a satisfactory agreement on their own.   

A win-win settlement does not necessarily mean an equal win for both sides.  One party may gain more in a settlement than the other, but as long as both parties gain more and both parties’ problems are solved, a win-win outcome is usually achieved. 

Not every mediation will end in a settlement.  For those that do, some recognizable behaviors contribute to the successful cooperation of the parties in reaching a settlement agreement.  Some of the behaviors include: 

  • The parties understand that they are there to find options that reconcile the interests of both sides and reach a reasonable result.
  • They come prepared and know the strengths and weaknesses of their case, the costs of litigation, and the risks they are assuming if the case does not settle.
  • Parties and their representatives have thought about the range of money they would feel comfortable giving or taking and are prepared with an opening offer.
  • Parties do not focus exclusively on demonstrating that they are right.
  • They focus on the interests of both sides.
  • Parties and their representatives treat the other side with respect.
  • They understand that they will not get everything they initially demanded.
  • Parties are open to non-conventional solutions.
  • Finally, they understand that patience is required throughout the process. 

Many mediators agree that the sign of a successful mediation is when the plaintiff agrees to accept less than expected and the defendant agrees to pay more than expected.  To get to a settlement, compromise on both sides should be expected.

Definition of successful settlement in mediationWhat Happens After a Successful Mediation?

Once the parties have reached a verbal agreement on all settlement terms, the mediator will assist the parties in drafting a written settlement agreement to be signed by all parties.  Part of the agreement is a release, which is an agreement between the parties stating that one of the parties will relinquish their privileges to a legal claim.  Many mediation settlement agreements also contain confidentiality provisions, whereby the parties agree that the settlement terms are to be kept confidential and not disclosed to any third party unless required by law.  In the US, after both parties sign the agreement and payment is made, the counsel for the parties will advise the court that the matter is settled, and the judge will sign an order of dismissal.  At that point, the legal case is resolved, and in most civil cases, the parties will not need to return to court.  

The Settlement Agreement is a Binding Contract

In the US and in many other countries, a mediation settlement agreement can become a binding contract that can be enforced in a court of law.  Parties to the agreement may not change their minds about it later.  If a party fails to comply with the terms of an agreement, the court will likely enforce the agreement, and sanctions may be entered against that party.  Also, attempting to change or add new terms to the settlement agreement post mediation may be difficult.  For instance, if one party wants confidentiality or non-disparagement language in a settlement, those terms should be discussed during the mediation session before a final settlement is reached.

The mediation process is an efficient and effective forum for settling disputes outside of court.  Using a skilled neutral third party to facilitate the discussions and the exchange of negotiations, the parties in a dispute can shape a mutually beneficial resolution and come away with a successful outcome.

What is the Difference Between Mediation and Arbitration?

What Is The Difference Between Mediation And Arbitration

What is the difference between mediation and arbitration?

Mediation and arbitration share a common lineage as alternatives to the traditional legal system of court and jury trials.  Known as different forms of alternative dispute resolution (ADR), they are both intended to offer less expensive, more efficient outside-of-courtroom approaches to resolving disputes than afforded by more formal litigation.  Yet there, the similarities end.  Mediation and arbitration are fundamentally different processes involving distinctly different conflict resolution approaches.


The Continuum of Dispute Resolution Processes

To best understand these important distinctions, it’s helpful to envision dispute resolution processes along a continuum of choices.  To the far left lie the less formal, less expensive, and voluntary processes, including conciliation and mediation.  As one moves conceptually toward the right end of the continuum, one moves towards the more formal tribunals like arbitration until reaching the most formal approach to dispute resolution — litigation — the civil trial and appellate process.

Timeline Description automatically generated

Alternatives to Litigation for Resolving Disputes

Before deciding on an alternative to litigation for pursuing a conflict, it is essential to understand the key differences in the alternative dispute resolution processes.



Arbitration is a method of resolving a civil dispute outside of the court system in which the disputants present their case to an impartial third party, who then makes a decision for them that resolves the conflict.  Historically, arbitration was synonymous with alternative dispute resolution as it was the first process developed to save the time and expense of protracted litigation.  

Situated to the right of the center of the dispute resolution continuum, arbitration is more formal than mediation or conciliation and can look more like the litigation process.  That is because, like litigation, arbitration is, at its core, an evidence-based, adjudicative process.  

Arbitration involves a hearing resembling a trial that takes place outside the courtroom, requiring the participation of the parties in dispute.  The arbitration process is conducted according to formal rules of arbitration administered by a single neutral arbitrator (or a panel of arbitrators) whose task is to conduct a formal hearing, including lay and expert testimony.  Like a trial, the hearing can often take weeks to complete.  Once testimony is concluded, the arbitrator rules on the evidence by issuing a decision.  The arbitrator’s decision, or “award,” is legally binding (unless the parties previously agreed to a non-binding arbitration).  Because the decision is final, there is no formal appeals process available.  Even if one party feels the outcome was unfair, unjust, or biased, they cannot appeal it. Unlike mediation, in an arbitration there are no discussions about working out the parties’ differences.

Arbitration is typically compelled by contract or statute, although parties can also agree to arbitrate after a conflict occurs.  A contract that includes an agreement to arbitrate disputes (an arbitration clause) will outline some key aspects of any potential future arbitration.  The rules and procedures that will be used in arbitration are typically part of this agreement.  If a third-party alternative dispute resolution service such as JAMS or AAA will be used to handle an arbitration, the contract may specify whether the rules and procedures of that third-party service will be used.   Rules typically address:

  • Number of arbitrators
  • Selection of arbitrators
  • Timeline for arbitration
  • Evidence
  • Awards
  • Confidentiality and records

The Arbitration Process

The main phases of an arbitration process include:

Initiation: An arbitration case begins when one party submits a demand for arbitration which outlines the parties involved, the nature of the dispute, and the relief being sought.

Selection of Arbitrator: both parties identify and select an arbitrator

Preliminary Hearing: Conducted by the arbitrator, a preliminary hearing with the parties may be held to discuss the issues in the case witnesses, depositions, sharing information, and other procedural matters.

Discovery: The parties identify witnesses, evidence, and experts, exchange information, and prepare for the hearing.

Hearing: At the hearing, parties present testimony and evidence to the arbitrator.  There is usually only one hearing before the arbitrator unless the case is very complex.

The Award: the arbitrator concludes testimony, closes the record on the case, and issues a decision, including an award.



A more recent approach to alternative dispute resolution is mediation, often defined as a facilitated negotiation.  Mediation is a process where two parties meet outside of court with a qualified and neutral third party, the mediator, and discuss their various issues to try to come to an agreement.  In commercial mediation, lawyers represent the disputants and are referred to as Mediation Advocates.

The mediation process is flexible, reflecting both the dispute’s unique requirements and the parties’ underlying needs and interests.  Typically, mediation involves a combination of face-to-face discussions with the parties and private meetings with the mediator.  Because there is no formal presentation of evidence, mediation can often be called upon early in a dispute before the parties’ positions harden and costs become another component of the conflict.  

Perhaps most important, what distinguishes the mediation process from arbitration is that the mediator’s role is to assist the parties in fashioning a solution of their choosing and “getting to yes” in the process.  Unlike arbitration, the mediator’s role is to facilitate difficult conversations, not sit in judgment of the parties.  In other words, the parties in mediation, at all times, retain control of decisions impacting the outcome of the dispute and their lives.  If and only if the parties voluntarily agree on an optimized solution, will they move toward concluding the dispute. 

As a voluntary, non-binding process, many courts and contracts will require mediation as a first step in a stair-step approach to other more formal dispute resolution processes.  All these advantages are capped with an appreciation that mediation is successful more often than not and can often be successfully implemented in a single day or less.  It is thought to be the preferred alternative, particularly where an ongoing relationship between the parties might otherwise be destroyed by the fallout of an adverse arbitration ruling.  


The Mediation Process

More and more, courts are adopting mandatory requirements for mediation as a first step in solving civil disputes.  In cases where mediation remains discretionary, most parties initiate mediation before or sometimes after litigation has been undertaken, without any involvement by the court.  This could be at one of the following critical junctures in a case: 

  • At the outset, following a demand letter or service of the complaint 
  • Just after a dispositive motion has been filed and is pending 
  • After the completion of limited but critical discovery 
  • On the eve of trial, following the completion of expert discovery 

Selection of the mediator:  

Once both sides have agreed to mediate, they jointly agree on a mediator.  The parties should try to find a mediator who is knowledgeable about the subject matter of their case, has experience litigating or mediating similar cases, and whom they think has the mediation skills necessary to bring the parties together in a settlement.

The Mediation Brief  

Once a mediator is chosen, the parties submit to the mediator copies of briefs and exhibits that they may have filed in court or may have created for the mediator.  The mediation brief is a central tool for the mediator to understand the factual, legal, and practical issues affecting settlement.  An effective mediation brief includes a concise statement of material facts, applicable law, damages, and settlement expectations, wrapped in a historical overview of the case.

In-person mediation meeting

The mediation is held in an office, usually provided by the mediator, not in the courthouse.  The parties, their lawyers, and the mediator attend the meeting.  The typical length of a mediation is less than one day.

Joint meetings in the mediation process

Mediation in a complex case typically begins with all parties, their attorneys, and occasionally experts assembled for a joint meeting to present the facts and legal arguments to the other parties, attorneys, and the mediator.  

Private caucuses

Following the joint meeting, particularly in commercial mediation, the mediator will typically separate the parties and begin meeting with them in a series of private, confidential meetings, or “caucuses.” In the caucuses, the mediator works with each side to discuss the strengths and weaknesses of the case, bring the parties’ positions closer together and explore settlement opportunities.  Either or both parties can decline to accept settlement offers.  

Closing the mediation

The goal of mediation is to obtain a durable settlement agreement acceptable to all parties.  If a settlement is reached, the mediator will draft, and the parties will execute, a binding settlement agreement that will include the dismissal of the case or the entry of an agreed judgment.  The mediator may encourage the parties to reconvene to continue settlement efforts if no settlement is achieved. 




Conciliation is a form of alternative dispute resolution similar to mediation.  In the United States, conciliation is commonly referred to interchangeably with mediation as both involve the intervention of a trained neutral facilitator appointed by the parties in the conflict.  However, there is a slight difference in the role played by the neutral facilitator.  In conciliation, the conciliator plays more of an advisory role and proposes workable solutions for both parties to help them to settle their disputes.  While the conciliator can recommend solutions, the disputing parties are not legally obligated to abide by the conciliator’s opinion.  As in mediation, only the conflicting parties in a conciliation can settle the dispute.  The conciliator is there to guide the conversation and make suggestions.  


Comparison of the Key Characteristics of Arbitration and Mediation

By understanding the key characteristics of arbitration and mediation and their place on the continuum of alternative dispute resolution processes, parties in a dispute can decide on the process that best suits their needs.




Place of Hearing

Outside of court

Outside of court

Type of Process/Hearing



Time to Settlement


Longer than Mediation



Less economical than mediation

Decision Maker


Arbitrator/Panel of Arbitrators

Role of Decision Maker

Mediator helps parties come to a mutual agreement

Arbitrator rules on evidence and decides the outcome

Type of Remedies

Creative remedies possible

Legal only


Parties decide the outcome

Award imposed by an arbitrator

Legally Binding 

Yes, if both parties agree on settlement



If agreement is not reached, may result in litigation

Award is final.  No appeal possible.




Satisfaction with Settlement

Win: Win agreement: Relationships likely retained

Winner and loser: Relationships may be strained

What is better, mediation or arbitration?

Both mediation and arbitration have their advantages and disadvantages.  Both are effective ways of solving disputes outside of court that are faster and more economical than traditional litigation and take place outside the public eye.

Certain situations nevertheless may benefit from mediation rather than arbitration.  Meditation may be the preferred option when:

  • Both parties believe they can reach an understanding on their own terms.
  • It is a first attempt to deal with a conflict, and it will likely not escalate to arbitration or litigation.
  • The parties will continue working together and must maintain an ongoing relationship despite disagreement.

Mediation in civil disputes often involves business partners, landlords and tenants, and labor unions and management.  Mediation is one of the most commonly used alternative dispute resolution methods in the construction industry and is also becoming increasingly more prevalent in the area of franchise law.

Arbitration may be preferred over mediation in other conflicts—particularly those with high stakes or complexity.  Arbitration may be a better option than mediation when:

  • A legal matter has escalated and become a more serious issue
  • Both parties have not been able to settle on an agreement

Generally, arbitration is used as a step to resolve the dispute before going to court.  It is widely used to resolve a wide range of commercial disputes.   Arbitration clauses are found in many construction contracts, contracts for the sale of consumer and business products, contracts between employers and employees and between co-owners of a company, and in many other situations.  Some agreements, such as insurance contracts, require a dispute to be resolved by arbitration and not by the traditional court system.

In summary, Many disputants, in-house counsel, courts, and judges are demonstrating a strong preference for mediation, arbitration, and other forms of dispute resolution for resolving conflicts outside the courtroom.  Offering a less expensive, more efficient option to traditional litigation, they are effective methods of resolving civil disputes of all complexities.

By understanding the key characteristics of arbitration and mediation and their place on the continuum of alternative dispute resolution processes, parties in a dispute can decide on the process that best suits their needs.

The Effective Mediation Brief: A Missed Opportunity for Many

effective mediation brief

By Bruce Edwards

Earlier this year, my colleagues at the Weinstein International Foundation sponsored a mediation brief writing competition. The goal of the competition was to inspire and develop mediation brief writing skills in law students from around the world. In preparing the competition, it became clear to my colleagues that little has been written about the important role mediation briefs play in the broader topic of mediation advocacy. Additionally, little formal criteria could be found to assist the judges in evaluating and scoring brief content. 

All too often, mediation brief writing has been given short attention by legal professionals eager to move on to acquiring the oral advocacy skills necessary for persuasion. Their failure to appreciate the importance of an effective mediation brief, as well as understanding what goes into writing one, represent a missed opportunity. If the goal of mediation is to change the mindset of others involved in a dispute, a properly prepared mediation brief represents the earliest and potentially best time to shape their thinking.

For most mediators, the criteria of “I know a good brief when I see one” represents the extent of their conversation about what makes an effective brief. Their lack of clarity does little to advance the learning of others. 

What is it about a mediation brief that differentiates one that persuades from one that further separates the parties? What do experienced mediators value most when presented with a brief?

What to consider when writing a mediation brief

1. Share the brief whenever possible. The quintessential first issue for every brief writer is whether to share it with others involved in the case, or simply provide it for the mediator’s private consideration. I believe that briefs should be shared whenever possible, since the brief is the first step toward transforming the opinions of others. It will also promote the free exchange of information once the mediation is underway. Parties who wish to address confidential information with the mediator or provide suggested settlement ideas in advance can do so in private phone conversations or separate written submittals.

2. Avoid the repurposed legal document. All too often, attorneys who are pressed for time or don’t understand the value of a well-prepared brief, opt to submit an existing legal document to the mediator, such as a pleading or motion. In the process, they have missed an opportunity to clearly and succinctly state their client’s position. Whenever possible, strive to write a persuasive statement that is different in tone and content from other documents regarding the case.

3. Summarize facts efficiently. Many mediators suggest that parties submit mediation briefs of a certain length, often no more than ten to fifteen pages, since the amount of detail required for trial or arbitration is not essential for a facilitated negotiation. Yet, many a night is spent by mediators reading twenty-five to thirty-page tomes, plus reviewing multi-page exhibits. The effective mediation brief is not a James Michener novel and should seek to capture, not dull, the reader’s attention.

4. Cite supporting caselaw appropriately. Many disputes have at their core a finite legal issue or two that is worthy of developing in detail. In those instances, don’t hesitate to highlight statutory language or caselaw, always underscoring the most important words or phrases for consideration. Most mediators don’t need a primer on the elements of a negligence cause of action or what a party needs to prove to establish a breach of contract. Your key legal arguments will be diluted if the mediator needs to cull important information from an overdeveloped legal presentation.

5. Set the proper tone. Herein lies the true art of mediation advocacy. The most effective mediation briefs thread the needle between forceful advocacy and adopting a tone of conciliation. They implicitly or explicitly convey that the party is there in good faith, willing to consider appropriate concessions, and looking to collaboratively engage. The best mediation advocates preview their briefs with their clients while explaining why they need to read differently than their motions for summary judgment.

6. Look to persuade, not put off. Here again, the challenge is to convince others of the strength of your position without alienating them in the process. The most effective mediation briefs avoid irritating words or phrases that cry out for response. They marshal the facts without unnecessary exaggeration or hyperbole while acknowledging gaps in the road to deductive conclusions. In sum, they reflect a best attempt at an intellectually honest assessment of the parties’ position, presented in a manner that causes the other side to reflect, not immediately respond.

7. Imagine and address what the other side needs to claim success. If the goal in mediation is for all sides to agree, then that process should begin with developing a mindset of what the other side(s) need to gain approval from their constituents. The author of the seminal treatise Getting To Yes, Dr. William Ury, describes this process as helping the other side “build a golden bridge.” It’s never too early to suggest solutions to a seemingly intractable problem, particularly ones that line up with the other side’s interests. Suggesting these types of solutions may lend itself more comfortably to private brief submittal, rather than sharing with all parties.

8. Don’t overlook negotiation history. Many a negotiation has stumbled out of the starting blocks, if not broken down entirely, when parties have not properly informed the mediator of all historical negotiations. This includes not just the formal exchange of demands and offers, but also any informal discussions that might have shaped expectations coming into the mediation process. An effective mediation brief will include conversations, as well as written or other communications between attorneys or clients, that might impact starting negotiation positions, if not ultimate settlement outcome.

9. Address obstacles to settlement. If obstacles have previously occurred in the form of court delays, an inexperienced judge, or other shared concerns, this information can be included in the mediation brief. If the mediation advocate thinks there are difficult personalities, a challenging client or other sensitive issues, a private statement submitted to the mediator or phone conversation may make sense. 

10. Acknowledge weaknesses. The most effective mediation briefs honestly assess both the strengths and weaknesses of one’s position. The mediation advocate’s goal is to develop trust and credibility with the mediator, and with the other side. What better way to begin that process than to acknowledge a missing piece of evidence, adverse testimony or ambiguous legal precedent? This approach allows the brief to address shortcomings in a way that communicates to others there’s nothing that hasn’t been considered.

11. Propose workable, creative solutions. One of the many benefits of the mediation process is its flexibility and creativity in fashioning solutions that match up with the interests of the client. Mediation briefs that limit their discussion to judicially available remedies alone error by omission and overlook the potential of a win-win result. While being mindful of the propensity for others to reject a proposal simply because it comes from an adversary, it’s imperative that the mediation advocate consider all potential solutions.

12. Develop a well-written brief. The most persuasive arguments begin with a well-written brief. It sounds obvious, but the opportunity to create a positive first impression often comes in the mediation brief. A well-written brief, with attention to clear, precise language, not only advances the argument to its fullest potential but also presents the author and client in the best possible light. 

Mediation advocacy represents the next frontier in training new attorneys to realize their full potential as client advocates. Mediation advocacy begins with a well thought out and crafted mediation brief, one that strikes the right balance of substance and style. Just like those law students in the recent international competition, learning how to write an effective and persuasive mediation brief represents a true art form. For attorneys interested in optimizing results for their clients in a facilitated negotiation, start by mastering the art of mediation brief writing.

The Value Proposition of Mediation; Bringing Success Out of the Shadows

The Value Proposition of Mediation

Conflict is a naturally occurring part of the human condition. Just like the air we breathe and the nourishment we take in, conflict fuels our growth. When managed properly, conflict provides the opportunity for growth and development by requiring us to navigate different perspectives, think more creatively, and broaden our collective vision. Yet, many individuals choose to ignore the “elephant in the room” in hopes that conflict can be dealt with by others or will disappear altogether. 

When unmanaged or left to fester unchecked, we know that conflict can become the single biggest impediment to the growth and productivity of individuals, organizations and governments. It stands to reason, then, that helping others understand the cost of conflict and, equally important, the value proposition of conflict resolution strategies such as mediation, is an essential step toward securing the future of our still nascent profession.

The Cost Of Conflict 

We can’t begin to understand, much less calculate, the value proposition of mediation without first understanding the true cost of conflict. Fortunately, much has been written to help businesses understand the cost of conflict in the workplace. We know that certain conflict-related costs can be identified in a workplace dispute by looking at the following:

  1. Direct Costs. The costs associated with outside counsel, in house general counsel time and support staff, including: paralegals, experts and administrative support. 
  2. Lost Opportunity Costs. It has been reported that senior executives of Fortune 500 companies spend over twenty percent of their time on litigation-related activities. When combined with a conflict’s impact on morale, effective decision making and wasted time, it’s easy to sense how conflict reduces productivity and distracts from an organization’s core objectives.
  3. Lost/Damaged Relationships. Studies have shown that it costs an organization between 150% – 200% of an employee’s annual salary to replace that individual when one factors in recruiting, training and startup costs of a new employee. Even more impactful can be the value of a lost customer, vendor or supplier.
  4. Emotional Toll. Several studies have shown that conflict in the workplace takes an emotional toll on those involved, as measured by increases in sickness and workplace absences. Not surprisingly, this proves true not just for those directly involved in the conflict, but also for others who work on the fringes of the conflict environment.
  5. Affected Company Culture. Conflict has an impact on a company’s reputation with customers, clients and employees. Each one will decide which companies share their values and deserve their current and future business.

Calculating The Cost of Conflict

In an effort to more accurately calculate these and other costs involved in workplace conflict, several “Cost of Conflict Calculators” have been developed to enable business leaders to better quantify the cost of conflict within their organizations. Looking at conflict even more broadly, in 2018 the World Bank reported its study on the economic impact of violent conflict on the countries involved, as measured by dramatic reductions in GDP.

Last year, I was invited to speak to the International Ombuds Association. To address the cost of conflict to their organizations, I suggested that they needed to understand the baseline costs before evaluating options for conflict resolution. Specifically, I suggested they gain the buy in of senior management to look at conflict from one of two perspectives:

  1. For a defined period of time, say one year, attempt to identify the types of conflicts that are addressed by management, general counsel, human resources or ombudsman. Then, calculate both the hard and soft costs incurred by the organization, due to those conflicts.
  2. Or, select a specific, typical conflict within the organization, and perform the same analysis.

Whatever the cost measuring tool or approach the organization uses, only by truly understanding the actual cost of conflict to individuals, organizations and communities, can one begin to see the value of conflict resolution strategies. (We discussed this in detail in a recent webinar, which you can watch here.)

The Value Proposition of Mediation

While much has been done to study and help quantify the cost of conflict in a variety of environments, precious little has been offered to support the value proposition of mediation itself. As mediators, we are well versed in touting the many benefits of mediation: cost effectiveness, time savings, repaired relationships, psychological wellbeing, etc. Yet, when it comes to quantifying these benefits through empirical studies, or even well supported anecdotal evidence, the store shelf is glaringly empty.

Why haven’t we as a profession done a better job of supporting the case for a process that we all know to be extraordinarily effective? The reasons, I suspect, are several fold.

As mediators, we tend to work in the shadows of the legal profession, plying our skills in a confidential environment. When a dispute is resolved, the parties are psychologically predisposed to want to move on, putting all aspects of the dispute behind them. The mediator herself, engaged for a limited purpose, quickly moves on to the next battlefront. Yet, what’s lost is the opportunity to quantify the “savings” to those pulled back from the ledge, however those “savings” are defined.

When several of my colleagues at JAMS successfully mediated the lawsuits arising from the 58 story Millennium Tower in San Francisco that had sunk 18 inches and was leaning an almost equal amount, more than 100 attorneys’ time and several years of courtroom resources hung in the balance. When mediation brought that litigation to conclusion and allowed the building to undergo essential repairs, extraordinary economic if not lifesaving benefits resulted for everyone involved. 

Similar benefits can result from mediations involving banking failures, fire losses, intellectual property disputes and mass tort lawsuits. While these may be extreme examples, every day mediators are taking on seemingly impossible tasks and assisting parties in conflict to reach workable solutions. Doesn’t it make sense, then, to capture the value that participants experience as a direct result of the mediation process?

Quantifying the Value Proposition of Mediation

How can mediators, and others, attempt to better quantify the value proposition of mediation? First, in selected cases and upon successful resolution, we should create the opportunity for the military equivalent of an “After Action Report.” The intervention of mediation in a particular conflict would be carefully examined with an eye toward identifying various objectively-measured savings. This analysis would need to be done in a way to protect confidences. And, there would be challenges in attempting to measure the more subjective value of repaired relationships, regained opportunities and improved psychological wellbeing. 

Yet, this deep dive, post mortem, done while the dispute is still fresh in its potential impact, would provide a veritable library of case-specific benefits, almost a Harvard Business School case study approach to conflict valuation. When viewed through the forward-looking lens of a modified cost calculator, for example, it would afford those involved in future conflicts the data points on which to base important decisions about how to address conflict, including the value of mediation. Imagine the potential application for artificial intelligence if, years in the future, we can look back on thousands of case studies showing both quantifiable outcomes and measurable savings brought about by mediation.   

Second, we as mediators need to do a better job of helping raise the value proposition of mediation in our broader communities, not for purposes of self-promotion, but to bring mediation out of the shadows and into the light of broader acceptance. The same process that favorably impacts family disputes, community disputes and commercial litigation needs to make its way into public discourse and policy formation. Only when mediation has found its rightful place as the intervention of first choice for all manner of conflict resolution, will we have succeeded in establishing the value proposition of mediation.  

Watch the Webinar | The Cost of Conflict

How to Choose an Online Mediation Course

How to Choose an Online Mediation Course

Since the Covid-19 shutdown and remote working for many, there has been a proliferation of online mediation training courses. While this demonstrates a positive trend toward mediation, it also heralds the need for greater scrutiny and discernment between course offerings. Before you jump at the first course you see, consider the following important criteria when selecting the course that is right for you.

1) Experienced Instructors 

First and foremost, look for those programs taught by instructors with “real world” experience, and the more the better. In a marketplace seemingly filled with professional trainers, nothing will distinguish the herd better than the instructor’s ability to blend theory with practical examples. Rich, practical experience developed through years of mediation will bring the learning to life and ultimately increase the quality of skill development.

2) Substantive and Interactive Learning

The best online programs offer the best opportunity for substantive learning in an interactive environment. The depth of substantive materials may be reflected in part by the length of the course but closer examination also may be required to reveal the true level of content. Moreover, we know from neurobiology that the best learning is experiential, including failure. All too often online courses are long on lecture and miss valuable opportunities to incorporate reflective learning and practical skill development. Focus on content and the interactive approach to learning.

3) Engaging

There is a reason your children find it difficult to separate from their onscreen gaming. It’s called engagement, and the best video games know how to draw the viewer into the virtual experience. Look for courses that have been designed with the assistance of an instructional designer as it will be more likely to keep your attention and promote retention of course material. Online learning must be engaging to bring the student back time and again, eager for more. Anything less promises disappointment.

4) Credentialing

Look for a course that has been pre-approved for certification by an established institution such as a respected university or bar association. Check with your local bar association or courts to learn requirements for mediators in your community and choose a course accordingly. Beware of those courses that promise you will be an internationally certified mediator upon completion or make other unsubstantiated claims regarding post curriculum credentialing. 

5) Long Term Learning

Many courses collect their fee and provide a passcode for a one time engagement. Yet, most online courses represent only the beginning of your career development. Seek out those programs that offer additional resources and demonstrate a long-term commitment to your learning. Whether follow up webinars, “Q&A” sessions, blogs, or personal followup, the best courses are those that welcome a long term commitment and offer ongoing support.

And of course, be sure to consider our online mediation courses, which check the box for all of the criteria outlined above.

A Dent in the Universe

As we approach the August 7th 2019 United Nations Convention and signing ceremony promoting international settlement agreements resulting from mediation, it is timely that we pause to reflect on the many and significant strides that have been made around the world toward promoting the use of mediation to resolve conflict. As Steve Jobs famously said, “We are here to put a dent in the universe. Otherwise why else be here?”

What have we learned from those mediators working tirelessly to promote the institutional and cultural changes necessary to implement mediation within their home countries? More specifically, what are the most profound successes and remaining challenges confronting those individuals who each day try to put a dent in their part of the universe?

It is often observed that our global community is ever shrinking, due to the free flow of information, advances in technology, and the urgent need to address cross border issues, such as mass migration and climate change. Against this backdrop, there exists a worldwide effort to promote and implement mediation in communities, institutions and governments. What was, until recently, a nascent effort to affect change through mediation, now shows signs of achieving a firm toehold in many countries around the world.

What are some of the noteworthy successes in implementing mediation?

Weinstein JAMS International Fellows

Since its inception in 2008, the Weinstein JAMS International Fellows program has provided skills development and collaboration for students who come to the United States for several months of mediation training. So far, students have originated from over seventy-five countries, and their backgrounds include: judges, government officials, attorneys and refugee camp workers. The International Fellows program now counts upwards of 120 graduates. Those graduates have returned to their home countries to draft legislation, reform courts, develop commercial mediation practices and in a variety of other ways, promote the implementation of mediation. Some of their more successful efforts include:

  1. Rwanda – International Fellows have drafted a new mediation law and assisted with training local judiciary and bar association members in an effort to implement mediation in the Rwandan civil and criminal justice systems.

  2. India – International Fellows have worked to relieve overcrowded court dockets by assisting with community mediation centers. One Fellow has established the first commercial mediation center in India, staffed by attorney mediators.

  3. Republic of Georgia – International Fellows have worked with the Prime Minister and the Minister of Justice to lay the groundwork for a multi-pronged approach to implementing mediation and establishing their country as a regional hub for business.

The Global Pound Conference

In 2016, the Global Pound Conference took place around the world in more than 25 regional venues. The Global Pound Conference, of which I co-hosted the San Francisco event, was an ambitious attempt to take a real-time snapshot of the Alternative Dispute Resolution community by using a series of similar questions, designed to measure regional differences. While I leave the substantive outcome of that effort to more scholarly publications, it was one of the first attempts to both recognize and calibrate a deeper understanding of the global mediation community. In their collective efforts, the program directors helped give legitimacy to that community, while helping to identify the common issues and challenges confronting us all.

United Nations Convention on International Settlement Agreements Resulting From Mediation

In late 2018, the United Nations General Assembly adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation. Individual mediators from Singapore and beyond spearheaded this effort, and on August 7, 2019 a signing ceremony will be held in Singapore to herald the adoption of the Convention. While the Convention will still require the signatures of multiple state stakeholders to become effective, it will address for the first time one of the major, often cited challenges to the use of mediation in cross border disputes: the lack of an efficient and harmonized enforcement mechanism. Perhaps as important as the Convention itself, the “Singapore Convention,” as it has become known, has elevated the profile of global mediation efforts in a manner not previously possible.

Technology and the rise of online dispute resolution

The promulgation of online dispute resolution has largely mirrored the advancement of technology in our broader society. Over the past several years, we have seen brick and mortar small claims courts replaced with online dispute resolution protocols in parts of England, Canada and the Netherlands. Emerging websites promoting ecommerce around the world now almost routinely offer access to online dispute resolution (ODR), when conflicts arise involving online transactions. What was once thought in the world of mediation to be the exclusive province of face-to-face intervention, ODR has expanded the idea of what’s possible. Perhaps, most importantly, ODR as a real time, cost effective approach to the resolution of high volume, low dollar disputes has introduced a new generation to the potential of mediation.

Technology has also allowed for the extended reach of quality education and mediation skills development. Online training and education platforms like Edwards Mediation Academy are making it possible for those who are interested in advancing their skills in mediation, mediation advocacy or career development to learn by accessing a computer. Whether the student is a Director of Human Relations from Saudi Arabia, a civil engineer from Pakistan or a judge from Rwanda, the ability of online training to provide valuable lessons in mediation can’t be underestimated.

What challenges remain?

Notwithstanding these and hundreds of other brilliant successes toward the advancement of mediation around the world, in the words of the famous poet, Robert Frost, we still “have miles to go before we sleep.” What are the most commonly recurring challenges, as reported by those at the tip of the spear? What do mediators in emerging markets report are the most daunting obstacles they confront in their home countries? Equally important, what advice can we offer each other to assist in overcoming these sources of resistance?

Institutional challenges

Time honored institutions, and the individuals who comprise them, are often resistant to change. Large institutions, career public servants and vested professionals typically have a strong interest, often financial, in preserving the status quo. While it is beyond the scope of this article to address the multi-faceted and nuanced approaches necessary to overcome deep-seated resistance to mediation, suffice it to say, it can be done. Any meaningful change begins with understanding the needs and interests of all the stakeholders and finding thoughtful ways of addressing those needs. Often, institutional resistance reflects a range of fear-based concerns: what will happen to my company, job, income, etc. Only by understanding and addressing these concerns can those hoping to implement a new culture of mediation obtain their highest trajectory.

Political challenges

In all countries, the administration of justice lies at the foundation of government. How a government provides access to and administers justice will prove the ultimate measure of that government’s success. Therefore, it is imperative to learn to work with government leaders in a so called “top down” approach to implementing mediation in all aspects of government, including the administration of justice. Unfortunately, too many countries around the world are plagued by inefficiencies, longstanding corruption or lengthy court backlogs, which impact access to and the fair administration of justice. Introducing mediation in these environments requires a deft touch and a degree of patience that tests most people’s talents.

More often than not, overcoming political challenges to mediation begins with finding and convincing the right leaders of its value proposition. Learning to speak their language is essential and starts by addressing the most basic questions: why use mediation, what does it offer me politically, and how will it improve the lives of my constituents? In those countries where successful strides in mediation have been made, including: England, Canada, India and Rwanda, to name only a few, these questions have been sufficiently answered for those in leadership positions. Real change was able to take root only after first enlisting the support and collaboration of key government officials, such as Prime Ministers, Ministers of Justice and Justices of the Supreme Court.

Cultural challenges

While the language of conflict is universal, the value proposition of mediation is not. The message of mediation, including its many benefits, must be tailored to the unique cultural environment where the conflict occurs. One of the key cultural challenges to the introduction of mediation worldwide is the exportation of mediation as developed and defined in the United States. For example, our western based thinking and language defines mediation as “an interest based process” requiring the parties in conflict to focus on individual needs and interests. Yet this approach is anathema to collectivist cultures, where the needs of the individual pale in comparison to the needs of the many.

In many cultures that are based on interdependence, such as: India, Latin America and large parts of the Middle East, relationship issues can be as significant, if not more so, than substantive issues. Those who are committed to advancing the potential of mediation need to use language that better articulates and more broadly defines concepts like “interests” in order to overcome cultural resistance to mediation. Only when potential stakeholders come to recognize “interests” as including, if not prioritizing, the relational needs of the many, can we truly speak the language of our audience.

Additionally, how different cultures approach communication (high context versus low context), approach negotiation and view the need for written settlement outcomes, are but a few of the many nuanced differences that vary from culture to culture. Those differences can give rise to significant mediation challenges, if not properly considered in advance.


The past few years have given us reason to be proud in our collective efforts to promote the use of mediation in our global community. Just as the weary mountain climber gains strength by pausing along her journey to admire the view from whence she came, so too must we as a mediation community pause to reflect on our past achievements. From the hundreds of individuals working to implement mediation within their own countries, to the higher profile moments of the Global Pound Conference or the upcoming Singapore Convention, change is happening.

While at times change can be frustratingly slow, we should all take pride in our collective achievements, while redoubling our efforts to quicken the pace. In the words of former President Barack Obama, “Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we have been waiting for. We are the change that we seek.”

We have accomplished so much. So much more remains to be done.

Get Mediation Tips from Bruce Edwards

Bruce A. Edwards

Bruce A. Edwards is an ADR industry pioneer and former chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards recently cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world

Bruce’s interview with


Bruce was interviewed by Clare Fowler of earlier this Spring.  

She asked him a variety of questions ranging from the state of mediation today to mediation & arbitration in India. We’ve segmented the video by topic for your convenience. If you’re on the go, you can click audio to listen.

Mediation, Where Are We Headed?

Bruce shares his insights on the commercial field of mediation, where we are today and where we are headed.  Can the practice of mediation stay true to the core concepts of interest based dialogue and the right of self determination, if co-opted by lawyers looking only to get a deal done?  How can we expand these lessons into broader society?


Neurobiological Approach to Conflict

Conflict and the language of conflict resolution is universal. In this video, Bruce shares his thinking about neurobiological development and how this allows him to develop thoughtful ways to address conflict.


The State of Mediation in India


In India, with over 60 million cases in the court system, access to justice is hard to achieve.  Bruce illustrates the power of mediation to help unclog the court system for all disputes throughout India.


Challenges to building a culture of commercial mediation in India

Bruce describes the challenges and the opportunities for building a culture of mediation in India.


Arbitration in cross border disputes (and the Singapore Convention)

While Bruce’s standard practice and vision is the empowerment and facilitation of decision making processes among parties, arbitration in many parts of the world is the standard, if not the preferred legal route. With the large number of cross border disputes going to arbitration, can mediation become the first stop on the stair step of dispute resolution forums?


Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Heroes and Capes

On March 18, 1997, 3 years after the Rwandan genocide officially ended, the Interahamwe militia from the Democratic Republic of Congo entered the Nyange Secondary School in western Rwanda as part of their murderous rampage and ordered the students to separate, Tutsi on the left and Hutu on the right. The students replied that there were no Hutu or Tutsi, they were all Rwandans. The Interahamwe, angered by the response, left the building but not before killing six students and injuring many others. In refusing to separate by ethnic divisions, the students became iconic heroes and a symbol for future generations seeking a unified Rwanda.

On February 1st we were in Kigali, Rwanda, the Land of a Thousand Hills. The country was celebrating “Heroes’ Day,” an annual event that pays tribute to all those who exemplified the highest values of patriotism and sacrifice for the well-being of the country.
We were sponsored by the newly formed Weinstein International Foundation, a nonprofit organization dedicated in part to supporting the advancement of mediation throughout the world. It was our third teaching journey to Rwanda on behalf of Edwards Mediation Academy, as we continued our efforts to assist the Rwandan government in implementing mediation in their civil justice system.

A new generation of heroes

As we spent the week teaching mediation skills to attorneys and judges, we witnessed first hand the importance and meaning of Heroes’ Day. While nothing can compare to those who paid the ultimate sacrifice through heroic acts during the genocide, it was impossible on that day of celebration to not draw some comparisons with a new generation of “heroes” – individuals who are committed to making great personal sacrifices while taking on new challenges for the betterment of their country. Like most heroes, they would scoff at the designation, yet such humility does not cheapen their contribution, nor make their sacrifices any less noble.

We sat down on Heroes’ Day with Michel Muhirwa, who works in the refugee camps for Congolese nationals in Rwanda. He described his job of teaching dispute resolution skills to community mediators, who could then help resolve conflicts within the camps. He also shared an example of organizing and facilitating monthly meetings between the refugees and surrounding community leaders, focused on reducing conflict around sharing the scarce resources of fresh water and firewood. We concluded the conversation by discussing how to implement peer mediation training in the refugee schools to bring these important skills to the very young.

Rwandan Weinstein JAMS International Fellows

Our hosts for the week were three ADR-trained Weinstein JAMS International Fellows, Anastase Nabahire, Harrison Mutabazi and Bernadette Uwicyeza. These heroic individuals have become the center of the mediation universe within their country, working with the Ministry of Justice, the judiciary and the Rwandan Bar Association to promote public policy, increase awareness, and organize training around mediation skills. During our week in Rwanda, Bernadette, in collaboration with our American colleague, Emily Gould, a mediator and professor at Columbia Law School, undertook the ambitious task of drafting legislation seeking to implement mediation in both the Rwandan civil and criminal justice systems. If successful, this new law will draw on principles of restorative justice and a pre-colonial dispute resolution heritage that may set a model for all of Africa, if not beyond.

Mediation has changed the judicial system

A discussion of modern day heroes would not be complete without mentioning His Lordship, the Chief Justice of the Rwandan Supreme Court, Prof. Sam Rugege, a man whose exalted title stands in stark contrast to his humble demeanor and gentle spirit. If there is an example of the power of one person to effect change, it is Sam. His firm conviction that the role of mediation and its ability to preserve relationships while inspiring peaceful resolution of conflict, is central to the success of the Rwandan judicial system and has created a seismic shift in perspective. Lawyers who once viewed their role as confined to litigation are now being taught the value of “softer,” but equally important, dispute resolution skills.

Finally, not all of the heroes we came across were high profile judges or government officials. One afternoon we visited a local courthouse and shared mediation stories with court registrars. These civil servants are tasked with meeting potential litigants in austere court facilities. With little formal training, they steer litigants toward resolution rather than litigation, using equal parts common sense and mediation skills.

Changing peoples’ lives for the better

While few of us in life can ever compare ourselves to the students who lost their lives in the genocide or Rwanda’s new generation of heroes, their courageous acts should remind us that we each have within us the ability to change peoples’ lives for the better. Once, after going out of my way to assist one of my children’s friends in need, my son looked at me and said appreciatively, “Dad, not all superheroes wear capes.”
As mediators and trainers, we need to remind ourselves of that every day. Mediators have the unique opportunity to reduce suffering and help bring about profound changes in peoples’ lives. Whether these efforts occur in distant countries or local communities, it’s the same lesson: In our passionate pursuit of service to others, we can all be truly heroic.

Bruce A. Edwards is an ADR industry pioneer and recent chairman of the board of directors of JAMS, this country’s largest private provider of ADR services. Along with his wife, Susan Franson Edwards, Mr. Edwards cofounded Edwards Mediation Academy, an online education platform dedicated to improving the skills of mediators around the world.

Rebecca Westerfield, Making People Feel Comfortable


Rebecca WesterfieldOne of our exceptional Edwards Mediation Academy instructors is Rebecca Westerfield. Rebecca has been mediating for over 22 years and has settled and arbitrated over 2,500 cases throughout the United States and internationally. One of the qualities I most admire about Rebecca is her wonderful way of making people feel comfortable and understood.

On becoming a mediator

Before becoming a mediator, Rebecca had been a sitting judge. What made Rebecca decide to become a mediator was her genuine desire to help people. Rebecca believes that our legal system sometimes creates obstacles and barricades to the exchange of interests and information that could create a much more satisfying resolution for everyone. Mediation helps cut through these barricades and enables the parties involved to determine their own outcome. What Rebecca brings to every mediation is her real desire to want to serve.

Slowing things down

Rebecca believes that hospitality is a very big part of mediation. She spends a lot of time trying to create relationships and connections, and that means slowing things down from the beginning. Rebecca wants people to become completely comfortable with her and the mediation process before delving into it. She creates a rapport and a personal connection with her clients that helps her to see them and their case in a unique way – not just another case, as usual, but their case.

One of the ways Rebecca approaches this “purposeful deceleration” is to, in the cadence of her voice, slow things down. She invites people to be engaged in conversation. She tries to find out things about them – who they are and what is important to them. She asks very open-ended questions and tries to find common points of interest. It might be travel, it might be a favorite book, it might be a movie they’ve seen, and she builds on that.

Rebecca understands that different people need different things to help them become comfortable with the mediation process. For example, she had a case involving a family member who was badly injured in a major catastrophe. She went to the family’s home on a Saturday morning to see them in their home environment, and to give them an opportunity to show her what their everyday life was like.

She took flowers, and they served her tea. They had a lovely conversation. She found that she was able to fully appreciate what they were living with, due to the injuries. The family realized that Rebecca understood what they were living with and respected what they were going through. They knew she understood their situation in a way that wasn’t artificial. As a result of that visit, Rebecca was able to be much more responsive to their real concerns and interests during the mediation process. 

Envisioning the future

Rebecca invites her clients to envision the future they want, one that is beyond the anger or pain they may feel in the present moment. She will ask the parties to share with her what they want their life to look like a year from now. What do they want their business to be doing a year from now?  Do they want to make their business a lawsuit, or would they rather be producing widgets and marketing them. She finds that these types of discussions often help individuals move through their emotions to a satisfying resolution.

Susan Franson Edwards co-founded Edwards Mediation Academy with Bruce Edwards in 2014 in an effort to deliver the highest quality mediation training to a worldwide audience.