The taxonomy of mediators

In his book, "Bargaining for Advantage," G. Richard Shell identifies five basic bargaining styles: (1) competing; (2) accommodating; (3) compromising; (4) avoiding and (5) collaborating. These styles coincide with those identified by the ubiquitous TKI (Thomas Kilmann Instrument) familiar to virtually everyone who has ever taken a course in conflict resolution.

I recently mediated a case where one party was represented by the co-author of this piece, attorney Paul. P. Cheng. Paul has practiced law for about 15 years and he and I have mediated cases where he has represented both plaintiffs and defendants in employment and other civil litigation matters. I discussed with Paul how he prepares his clients for mediation.

He shared with me that he categorizes mediators into four basic personality types: (1) bullies; (2) butterflies; (3) status quo personality; and (4) compliance types. He acknowledges that most mediators will exhibit traits from more than one type. I found Paul's labels and, more important, his descriptions, perceptive (especially as they related to my style). So, I asked Paul whether I could use his taxonomy as a basis for my column. He agreed. We hope you will find this discussion useful whether you hire mediators or mediate cases yourself.

Bullies, as their name suggests, want immediate results. They accept challenges by forcefully making things happen. Bullies seek power and authority, prestige and challenge. We find that inexperienced mediators, especially if they are used to adjudicating as opposed to mediating, are more likely to adopt this posture than those with more experience. Often a bully is a true expert and demonstrates little tolerance for attorneys who are not quite as versed in the relevant area of the law. If a bully wants others to weigh the pros and cons of an action and calculate risks, he will tell the party what the pros and cons are and refuse to hear a party's take on the pros and cons. A bully is likely to be extremely evaluative rather than facilitative and forceful about pushing his evaluation on the parties. The worst bullies are those who simply tell each party: "you are going to lose," or "you are going to spend a lot of money" without any cogent analysis. Bullies are predictable. They try to scare each party into settling rather than persuading them that it's in each of their interests to do so.

If the mediator is a bully, mediation is more likely to come to a quick, sometimes abrupt, conclusion. Any settlement, if at all, would tend to be accomplished quickly. While this style may be appropriate and successful in some situations, most people end of feeling short-changed in that they often want to air out their grievances. In these situations, even a settlement can leave a party feeling bad about the process.

Butterflies. Butterflies are articulate "people person" types who make favorable impressions on others. They want to be popular, and social recognition is important to them. Butterflies need others to seek out the facts and focus on the task at hand by being nice, building rapport, and appearing interested in what a party says.

A butterfly-type mediator may be able to keep a mediation socially lubricated, so that parties do not reach an impasse or walk out too soon. The chances for a settlement between two parties is increased with a well-respected, butterfly-type mediator.

Butterflies may challenge you by making you feel bad about your position by contending that it makes you look unreasonable.

Status Quo Mediators. Status quo mediators are patient people who prefer security and social norms, and the generally accepted status quo, unless valid reasons indicate change is necessary. For example, they may look at an email and presume that most people that respond to emails read them. If you contend that you did not get the email, he will suggest that you have responded in bad faith, because a generally accepted social norm is that if you receive and respond to an email you read the original message.

Frequently, status quo mediators will continually ask you "does that make sense?" That statement is always made, because sometimes, positions articulated may not make sense on its face. You must be ready to defend your position with responses that "sound reasonable" based on social norms.

Compliance Personality. Compliance types tend to concentrate (and sometimes overly focus) on details. They focus on key directives, standards, and timelines. When you are unable to work with them on key details, they will discount your case and make you feel like your case is worth less than what it is.

The message to attorneys and clients is that personalities matter. While not every mediator fits neatly into a single, the process and outcome of any mediation will depend, in large part, on what type of mediator is at the mediation. Or at least what personality traits come out during mediation. Attorneys should help their clients prepare for a mediation by selecting the mediator whose personality the attorney believes is most likely to facilitate an agreement. Not only that, but attorneys should provide their client an assessment of the mediator's personality so the client knows what to expect and how to react to what the mediator says and does. 