Building a relationship of trust is an integral element of the mediation process. Where litigation is a poker game that pits the parties against each other, mediation is a process that requires the parties to reveal and combine their cards to build the best hand. The mediator plays a crucial role in developing the right environment for the parties to disclose. Setting the stage, a mediator can earn confidence in the parties before the mediation begins by producing a veritable resume of past similar cases. A mediator might attach references that can confirm mastery of the process. During the mediation itself, a mediator can earn trust through conduct and disposition by demonstrating empathy, generating rapport and reducing indications of bias. By encouraging creative solutions and maintaining neutrality, the mediator builds a bridge.
But if you further widen the scope beyond any individual mediator, there is a third way for mediators to generate trust— it is systemic, and regulatory in nature. Implementing an industry-wide regulatory scheme can strengthen the mediation profession by informing and protecting clients who would otherwise be taking a leap of faith.
In a 2006 child support case, a decree was set aside when it was discovered that the parties’ mediator was not in fact an experienced practitioner, but instead a friend of the ex-husband and convicted felon and who was posing as a mediator. In another case, Gary Karpin, a disbarred lawyer, fashioned himself a sham mediator practice and used the mediation process to con about 300 clients out of around $1 million. Gary Karpin operated by claiming to provide mediation services whilst in actuality providing illegal and unsound legal advice by advising clients in their conduct and charging his unreasonable amounts in his bills.